CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 298/22

In the matter between:


MOTOR INDUSTRY STAFF ASSOCIATION First Applicant

WILLEM FREDERICK LANDMAN Second Applicant

and

GREAT SOUTH AUTOBODY CC t/a GREAT SOUTH
PANELBEATERS Respondent


Case CCT 346/22

In the matter between:


SOLIDARITY obo GERHARDUS VILJOEN
STRYDOM AND OTHERS Applicants


and

STATE INFORMATION TECHNOLOGY
AGENCY SOC LIMITED Respondent



Neutral citation: Motor Industry Staff Association and Another v Great South
Autobody CC t/a Great South Panelbeaters ; Solidarity obo
Strydom and Others v State Information Technology Agency SOC
Limited [2024] ZACC 29

2
Coram: Zondo CJ, Chaskalson AJ, Dodson AJ, Kollapen J, Mathopo J,
Rogers J, Schippers AJ, Tshiqi J and Van Zyl AJ


Judgments: Zondo CJ: [7] to [135]
Van Zyl AJ: [136] to [181]
Rogers J: [182] to [221]

Heard on: 2 November 2023

Decided on: 20 December 2024

Summary: Automatically unfair dismissal in terms of section 187(1)(f) of
the Labour Relations Act 66 of 1995 — dismissal based on age
— age discrimination — employees continuing in employment
after agreed retirement age of 60 years




ORDER



In the Landman case, CCT 298/22:
On appeal from the Labour Appeal Court of South Africa (hearing an appeal from the
Labour Court):
1. Leave to appeal is granted.
2. The appeal is dismissed.
In the Solidarity case, CCT 346/22:
On appeal from the Labour Court of South Africa:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The decision of the Labour Court is set aside and, for it, the following
order is substituted:
“(a) The dismissals of Solidarity’s members involved in this case
were automatically unfair.
3
(b) The respondent must pay each Solidarity member involved in this
case an amount equal to his or her remuneration for 24 months
calculated at the rate of remuneration applicable to the employee
concerned at the time of his or her dismissal. In the case of the
dismissal of the late Ms du Plessis, the respondent shall pay Ms
Lötter in her capacity as the executrix of the estate of the late Ms
du Plessis an amount equal to 24 months’ remuneration that was
applicable to Ms du Plessis at the time of her dismissal.”


JUDGMENT




THE COURT:


[1] These two cases concern the interpretation of section 187(2)(b) of the
Labour Relations Act1 (LRA). The delay in delivering judgment is in part attributable
to the fact that the Court has been unable to reach agreement on the matter. The result
is that there is no majority on the interpretation of the section. There are, however,
majorities for the orders to be made in the two cases.

[2] On the interpretation of section 187(2)(b), four members of the Court
(per Zondo CJ, with Chaskalson AJ, Mathopo J and Schippers AJ concurring) (first
judgment) conclude that a dismissal on the basis of age is fair in terms of that section
only if the employee’s employment is terminated on the date upon which the
employee attains his or her normal or agreed retirement age , unless the agreement or
collective agreement provides that , where the employee reaches the normal or agreed
retirement age on a date other than the last day of the month , his or her last working
day or his or her retirement date will be the last day of the month . A termination on

1 66 of 1995.
THE COURT
4
the basis of age at a later date is automatically unfair. The first judgment holds that
Waco2 and the cases that have followed it were wrongly decided.

[3] A fifth member of the Court, Van Zyl AJ (second judgment), holds that upon
the employee reaching his or her normal or agreed retirement age, the employer has an
election whether to terminate the employee’s employment on the basis of age. This
election is governed by ordinary contractual principles. Such a termination, and
notice thereof, may take place on a date later than the employee’s normal or agreed
retirement age. An employer may, however, be found to have elected not to terminate
the employee’s employment if the employer fails to exercise the termination election
within a reasonable period of time. This depends, though, on whether the employer
had knowledge of the correct legal position. The second judgment thus also disagrees
with Waco, but for reasons differing from those contained in the first judgment.

[4] The remaining four members of the Court (per Rogers J, with Dodson AJ,
Kollapen J and Tshiqi J concurring) (third judgment) hold that once an employee has
reached his or her normal or agreed retirement age, section 187(2)(b) permits the
employer, then or at any time thereafter, to terminate the employee’s appointment on
the basis of age, upon the giving of reasonable notice. The third judgment leaves open
the question whether the employer is required to give the employee a hearing, since a
decision on that point is unnecessary. It does, however, point to the desirability of
affording such a hearing. The third judgment thus accords with the interpretation
adopted in Waco, albeit for somewhat different reasons to those stated in that case.

2 Schweitzer v Waco Distributors (A Division of Voltex (Pty) Ltd) (1998) 19 ILJ 1573 (LC) (Waco).
THE COURT / ZONDO CJ
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[5] As to the order to be made in the first case, CCT 298/2022 ( Landman), there is
unanimity that the case engages the Court’s jurisdiction and that leave to appeal
should be granted. The first judgment would have upheld the appeal and awarded
Mr Landman compensation equal to 24 months’ remuneration together with costs in
the Labour Court, the Labour Appeal Court and this Court. The second and third
judgments conclude, however and albeit for differing reasons, that the appeal should
be dismissed with no order as to costs. The latter disposition of the case thus
commands a majority.

[6] As to the order to be made in the second case, CCT 346/2024 (Solidarity), there
is again unanimity that the case engages the Court’s jurisdiction and that leave to
appeal should be granted. The first judgment concludes – both as a matter of law
based on its interpretation of section 187(2)(b) and in any event on the particular facts
of the case – that the appeal should succeed, that the six employees in question should
be awarded compensation equal to 24 months’ remuneration and that the applicants
should be granted costs in the Labour Court, the Labour Appeal Court and this Court.
The second judgment would have dismissed the appeal with no order as to costs.
Based on the particular facts of the case, the third judgment agrees with the
disposition proposed in the first judgment, save that the third judgment would not
grant the applicants costs in any of the Courts concerned. There is thus a majority in
favour of upholding the appeal and awarding the employees compensation equal to 24
months’ remuneration, but no majority in favour of awarding the applicants costs in
any of the Courts concerned.



ZONDO CJ (Chaskalson AJ, Mathopo J and Schippers AJ concurring):


Introduction
[7] Section 187(1)(f) of the LRA provides:

ZONDO CJ
6
“(1) A dismissal is automatically unfair if the employer, in
dismissing the employee, acts contrary to section 5, or, if the reason
for the dismissal is –
. . .
(f) that the employer unfairly discriminated against an
employee, directly or indirectly, on any arbitrary
ground, including, but not limited to race, gender,
sex, ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief, political
opinion, culture, language, marital status or family
responsibility;”

[8] Section 187(2)(b) of the LRA makes provision for an exception to
section 187(1)(f). It reads:

“(2) Despite subsection (1)(f) –
. . .
(b) a dismissal based on age is fair if the employee has
reached the normal or agreed retirement age for
persons employed in that capacity.”

[9] Sitting as a Judge of the Labour Court in June 1998 – twenty six years ago and
within a few months after my appointment as a Judge – I handed down a judgment on
the meaning of section 187(2)(b) in a matter where an employee had been dismissed
from his employment on the basis that he had reached an agreed retirement age . The
dismissal in that case occurred more than a year after the employee had reached the
agreed retirement age. That employee had challenged the dismissal and contended
that his dismissal on the ground of his age was automatically unfair as contemplated in
section 187(1)(f). Section 187(1)(f) provided then, as it still does today, that the
dismissal of an employee on the ground of age constitute d an automati cally unfair
dismissal. In other words, it prohibits the dismissal of an employee on the ground of
age. However, section 187(2)(b) provided an exception to this prohibition . It
provided then, as it still does today, that the dismissal of an employee is fair if he or
ZONDO CJ
7
she “has reached the normal or agreed retirement age for persons in that capacity ”.
That was the case of Waco.

[10] In Waco I held that, once an employee had reached an agreed retirement age,
his or her dismissal on the ground that he or she had reached an agreed retirement age
was fair. I also held that, where , as in that case, an employee was not dismissed on
reaching the agreed retirement age but was dismissed long after that date on the
ground of age, the dismissal would be fair.

[11] Waco has been followed for the past 26 years and has been held to continue to
be good law. Now, 26 years later, sitting as a member of this the apex Court of
South Africa and as Chief Justice, I find myself tak ing part in the adjudication of a
case which raises essentially the same question as was raised by Waco and, therefore,
raises the question whether or not Waco was correctly decided .3 It was four years
after this country had become a democracy and under two years since the adoption of
the final Constitution when Waco was decided. Tempus fugit.4 While I dealt with the
Waco case a few months into my career as a Judge, I find myself dealing with the
present matter a few months before I retire from the Bench.5

[12] There are two applications for leave to appeal before us . They relate to the
Landman case and the Solidarity case. I will start with the Landman case and will ,
thereafter, follow up with the Solidarity case.


3 In our law the fact that a matter raises a question of law that a Judge decided in one way in another case is not
a ground for recusal.
4 Latin for: Time flies.
5 Although this judgment is to be handed down after I had retired, I prepared its first and second drafts when I
was still in office as Chief Justice but was about to retire.
ZONDO CJ
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The Landman case
The parties
[13] This case was presented to the Labour Court as a stated case. The first
applicant in the Landman case is the Motor Industry Staff Association which
represents certain employees within the motor industry. The second applicant is
Willem Frederick Landman (Mr Landman). Mr Landman is a member of the Motor
Industry Association. The respondent is Great South Autobody CC t/a Great South
Panelbeaters. The respondent is the former employer of Mr Landman. It is clear from
the respondent’s trading name that it runs a panel beating business.

The facts
[14] The agreed facts between the parties were the following:
14.1 Mr Landman commenced his employment with the respondent as a
procurement officer during November 2007.
14.2 During January 2008, Mr Landman and the respondent concluded a
written contract of employment.
14.3 In terms of the contract of employment the agreed retirement age for
Mr Landman was 60 years of age. Clause 9 of the letter of
appointment signed by both parties and thus constituting the contract of
employment reads:

“Your retirement age will be 60 years of age.”

14.4 Mr Landman reached 60 years of age on 15 March 2018.
14.5 The respondent was aware on 15 March 2018 that Mr Landman was
reaching the retirement age but did not dismiss him at that stage on the
basis of the agreed retirement age. After he had reached the retirement
age, Mr Landman continued to work as usual and the respondent
continued to pay him as usual.
ZONDO CJ
9
14.6 During 2018 the respondent never referred to Mr Landman’s retirement
age or the retirement clause.
14.7 On or about 14 January 2019 – ten months after Mr Landman had
reached the agreed retirement age – the respondent gave Mr Landman a
letter informing him that his services would terminate with effect from
12 February 2019 as he had reached the agreed retirement age of 60
years.
14.8 Mr Landman’s last working day was 12 February 2019.
14.9 The respondent dismissed Mr Landman due to his age.
14.10 Mr Landman was a member of the Motor Industry Provident Fund.
The Motor Industry Provident Fund Collective Agreement provided
that the retirement age of an employee who was a member of that fund
was 65 years.
14.11 To the extent that the employer was arguing that Mr Landman’s agreed
retirement age was 60, the inclusion of this statement in its statement of
defence conflicts with that case or contention. However, it is accepted
that the parties agreed that the agreed retirement age for Mr Landman
was 60 years. Accordingly, the matter must be decided on the basis
that the agreed retirement age applicable to Mr Landman was 60 years
despite the provision of the Motor Industry Provident Fund Collective
Agreement that the retirement age of employees who were members of
that fund, like Mr Landman, was 65. I mention in passing that, in the
light of the binding nature of a collective agreement as provided for in
section 23 of the LRA, the existence of this provision in the collective
agreement may well arguably be said to effectively vary or cancel the
retirement age provision in the parties’ contract of employment.
However, in this case it is not necessary to decide this point.

[15] The applicant’s case as set out in its pleadings was that by virtue of the parties’
conduct as set out above:
ZONDO CJ
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15.1 a new (second) employment contract came into existence which contract
did not contain an agreed retirement age, or at best for the respondent,
contained a retirement age of 65 years; alternatively,
15.2 the respondent had waived its right to rely on the retirement age as
stipulated in the written employment contract, alternatively,
Mr Landman and the respondent had waived the retirement clause;
further alternatively,
15.3 the parties tacitly amended the terms of the employment contract to the
effect that the agreed retirement age of 60 years no longer applied; and,
15.4 by dismissing Mr Landman during February 2019 on the basis of his
age, the respondent unfairly discriminated against him on the basis of
his age and , as such , his dismissal constituted an automatically unfair
dismissal in terms of section 187(1)(f) of the LRA.

[16] The respondent’s defence was that:
16.1 Mr Landman’s dismissal was fair pursuant to section 187(2)(b) of the
LRA as he had reached the agreed retirement age;
16.2 essentially, an employer can retire an employee at any time after the
employee has reached an agreed retirement age and such retirement will
be protected by section 187(2)(b) of the LRA;
16.3 as at the date of Mr Landman’s dismissal , his gross monthly
remuneration was R34 800.00;
16.4 the Motor Industry Fund Collective Agreement provides that the
retirement age of “an employee” who is a member of the Fund is 65
years of age.

[17] In terms of the stated case , the Court was required to decide whether a new
employment contract came into existence between Mr Landman and the respondent.
If the Court concluded that no new contract of employment came into existence after
Mr Landman had reached the agreed retirement age of 60 years, the Court would
decide whether the respondent waived its right to dismiss in terms of the retirement
ZONDO CJ
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clause in the written employment contract or whether , “alternatively [it] waived the
rights and obligations that [arose] from the said clause as alleged in paragraph 12 of
the statement of claim or alternatively [whether] Mr Landman and the respondent
amended the written contract as alleged in paragraph 12 of the statement of claim”.

[18] In terms of the stated case , the C ourt was also required to decide whether
Mr Landman’s dismissal by the respondent constituted an automatically unfair
dismissal in terms of section 187(1)(f) of the LRA. The Court was additionally
required to decide whether , by virtue of section 187(2)(b) of the LRA, the respondent
was permitted in law during January 2019 to rely on the retirement age clause as
contained in the employment contract to justify the dismissal.

[19] By way of relief the applicants sought an order for the payment of the
maximum compensation in the event that the Court found in favour of the applicants.
The parties agreed on certain facts that were relevant to the issue of compensation.
These were that:
19.1 as at the time of the hearing of the matter in the Labour Court,
Mr Landman had not as yet found another job;
19.2 Mr Landman was 62 years and 8 months old as at 27 November 2020
when the stated case was prepared;
19.3 due to Mr Landman’s retirement (dismissal) the Motor Industry
Provident Fund paid Mr Landman R1 034 430,13 on 26 March 2019 in
respect of provident fund benefits;
19.4 if the respondent had not dismissed Mr Landman when it did and had
allowed him to continue working until he was 65 years of age , which
was the retirement age provided for in the rules of the Motor Industry
Provident Fund for its members, the latter Fund would have paid
Mr Landman R1 674 127,56;
19.5 as at the date of his dismissal, Mr Landman’s gross salary was
R34 800,00 per month.

ZONDO CJ
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Labour Court
[20] The stated case was argued before Van Niekerk J who followed the Waco
decision and decided that the respondent was entitled to dismiss Mr Landman on the
ground of having reached the agreed retirement age when the dismissal took place
many months after Mr Landman had reached the agreed retirement age of 60 years.
Accordingly, the Labour Court concluded that Mr Landman’s dismissal was fair and
dismissed the claim . However, it did not award any costs against Mr Landman.
Mr Landman was aggrieved by the decision of the Labour Court and applied for leave
to appeal to the Labour Appeal Court against the decision of the Labour Court. The
Labour Court granted the applicants leave to appeal to the Labour Appeal Court.

Labour Appeal Court
[21] The applicants appealed to the Labour Appeal Court . The
Labour Appeal Court’s judgment was written by Kathree -Setiloane AJA and
concurred in by Waglay JP and Cop pin JA. The Labour Appeal Court upheld the
conclusions of the Labour Court and dismissed the appeal. The Labour Appeal Court
also did not make any order as to costs.

In this Court
Jurisdiction
[22] This Court has jurisdiction because the matter requires an interpretation of the
LRA which is a constitutional issue.6 The main constitutional issue is whether, upon a
proper construction of section 187(2)( b) of the LRA, an employer may dismiss an
employee who has been allowed to work beyond an agreed retirement age on the basis
that he or she has reached the agreed retirement age. Put differently, the question is
whether an employer who does not dismiss an employee when the latter reaches an
agreed retirement age but dismisses him or her after the employee has worked beyond
such agreed age may rely on section 187(2)( b) as a defence to a claim that the

6 National Education Health and Allied Workers Union v University of Cape Town [2002] ZACC 27; 2003 (2)
BCLR 154 (CC); 2003 (3) SA 1 (CC) (NEHAWU).
ZONDO CJ
13
dismissal is automatically unfair. In this case , Mr Landman was allowed to work for
many months after he had reached the agreed retirement age before he was dismissed
on the basis that he had reached the agreed retirement age. Dismissal on the ground of
age also constitutes a limitation of the right not to be unfairly discriminated against on
the ground of age as entrenched in section 9 of the Constitution. The constitutional
validity of section 187(2)(b) was not challenged in these proceedings.

Application for leave to appeal
[23] This Court grants leave to appeal when it is in the interests of justice to do so.
Some of the factors relevant to whether this Court should grant leave to appeal are
dealt with below:
23.1 Whether the issue or issues that the Court will have to decide in the
appeal, if it grants leave, will affect only the parties before it or whether
it will affect significant sections of society. If the judgment of the Court
would impact many people, that would be a factor that favours that
leave be granted . In the present case there can be no doubt that the
question whether an employer who does not dismiss or retire an
employee when he or she reaches his or her agreed retirement age but
dismisses him or her some time after that date may invoke section
187(2)(b) as a defence.
23.2 Whether there are reasonable prospects of success for the applicants if
leave to appeal is granted. The stronger the prospects of success for the
applicants the stronger the case for leave to appeal to be granted. In the
present case I consider that there are reasonable prospects of success for
the applicants despite the fact that on the face of it my judgment in
Waco – which has stood for 26 years – appears to stand in the
applicants’ way. I say this because a reading of Waco reveals that, in
arriving at the decision in that case, the Labour Court did not consider
the provisions of section 39(2) of the Constitution which requires that
legislation be interpreted to give effect to the spirit, purport and objects
ZONDO CJ
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of the Bill of Rights. It may well be that , when section 187(2)(b) is
interpreted with section 39(2) in mind, a different meaning will be given
to section 187(2)(b) than the one that the Labour Court gave in Waco.
23.3 The importance of the matter; there can be no doubt that this matter is
important and raises important issues.

[24] I conclude that, given the above factors, it is in the interests of justice that leave
to appeal be granted.

The appeal
[25] It is necessary to set out the constitutional and statutory framework relevant to
the determination of the issue in this appeal. The starting point is the Constitution.

Constitutional and statutory framework
[26] Section 1 of the Constitution reads as follows in so far as it is relevant:

“1. The Republic of South Africa is one, sovereign, democratic
state founded on the following values:
(a) Human dignity, the achievement of equality and the
advancement of human rights and freedoms.
. . .
(c) Supremacy of the Constitution and rule of law.
. . .”

Section 7(1) of the Constitution – which is under the Bill of Rights – provides:

“The Bill of Rights is the cornerstone of democracy in South Africa.
It enshrines the rights of all the people in our country and affirms the
democratic values of human dignity, equality and freedom.”

Section 9 of the Constitution deals with equality. It provides:
ZONDO CJ
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“(1) Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights
and freedoms. To promote the achievement of equality,
legislative and other measures designed to protect or advance
persons, or categories of persons, disadvantaged by unfair
discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race,
gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly
against anyone on one or more grounds in terms of subsection
(3). National legislation must be enacted to prevent or
prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in
subsection (3) is unfair unless it is established that the
discrimination is fair.”

[27] From the above, it will be seen that section 9(1) of the Constitution provides
that “everyone is equal before the law and has the right to equal protection and benefit
of the law ”. Section 9(3) and (4) prohibits, respectively, the state and any person ,
directly or indirectly, from unfairly discriminat ing against anyone on the ground of,
among others, age. Section 9(5) is clear. “Discrimination on one or more of the
grounds listed in subsection (3) is unfair unless it is established that the discrimination
is fair”. One of the grounds listed in section 9(3) of the Constitution is age.

[28] Section 6(1) and (2) of the Employment Equity Act7 reads as follows:

“6 Prohibition of unfair discrimination

7 55 of 1998.
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(1) No person may unfairly discriminate, directly or indirectly,
against an employee, in any employment policy or practice,
on one or more grounds, including race, gender, sex,
pregnancy, marital status, family responsibility, ethnic or
social origin, colour, sexual orientation, age, disability,
religion, HIV status, conscience, belief, political opinion,
culture, language, birth or on any other arbitrary ground.
(2) It is not unfair discrimination to —
(a) take affirmative action measures consistent with the
purpose of this Act; or
(b) distinguish, exclude or prefer any person on the basis
of an inherent requirement of a job.”

[29] Section 10 of the Constitution provides:

“Everyone has inherent dignity and the right to have their dignity
respected and protected.”

Section 23(1) of the Constitution reads:

“Everyone has the right to fair labour practices.”

[30] The LRA is legislation that was enacted to give effect to, among others, section
23 of the Constitution. Section 39(2) of the Constitution deals with the interpretation
of legislation. It reads:


“When interpreting any legislation, and when developing the common
law or customary law, every court, tribunal or forum must promote the
spirit, purport and objects of the Bill of Rights.”

In Hyundai8 this Court explained the spirit, purport and objects of the Bill of Right s
thus:

8 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Limited: In re
Hyundai Motor Distributors (Pty) Limited v Smit N.O. [2000] ZACC 12; 2000 (10) BCLR 1079; 2001 (1) SA
545 (CC) (Hyundai).
ZONDO CJ
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“[22] The purport and objects of the Constitution find expression in
section 1, which lays out the fundamental values which the
Constitution is designed to achieve. The Constitution requires that
judicial officers read legislation, where possible, in ways which give
effect to its fundamental values. Consistently with this, when the
constitutionality of legislation is in issue, they are under a duty to
examine the objects and purport of an Act and to read the provisions
of the legislation, so far as is possible, in conformity with the
Constitution.”

[31] The purpose of the LRA, as set out in section 1 thereof is important when a
Court is required to interpret the LRA. That purpose is to “advance economic
development, social justice, labour peace and the democratisation of the workplace by
fulfilling the primary objects” of the LRA. Those primary objects include:

“(a) to give effect to and regulate the fundamental rights conferred
by section 23 of the Constitution.”

[32] Section 185 of the LRA provides for a right not to be unfairly dismissed and a
right not to be subjected to an unfair labour practice. Section 185 reads:

“185 Right not to be unfairly dismissed or subjected to unfair
labour practice:
Every employee has the right not to be –
(a) unfairly dismissed; and
(b) subjected to unfair labour practice.”

Section 186 defines “dismissal”.9

[33] Section 187(1) of the LRA deals with automatically unfair dismissals .
Section 187(1)(f) reads:


9 Section 186 is quoted later in this judgment. See [36] below.
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“187 Automatically unfair dismissals
(1) A dismissal is automatically unfair if the employer, in
dismissing the employee, acts contrary to section 5
or, if the reason for the dismissal is—
. . .
(f) that the employer unfairly discriminated
against an employee, directly or indirectly, on
any arbitrary ground, including, but not
limited to race, gender, sex, ethnic or social
origin, colour, sexual orientation, age,
disability, religion, conscience, belief,
political opinion, culture, language, marital
status or family responsibility;
. . .”

Section 187(2)(b) of the LRA reads:

“(2) Despite subsection (1)(f)—
. . .
(b) a dismissal based on age is fair if the employee has
reached the normal or agreed retirement age for
persons employed in that capacity.”

[34] Section 188 deals with dismissals other than automatically unfair dismissals.
That is “other unfair dismissals” as the heading to section 188 calls them. Section 188
reads:

“188 Other unfair dismissals
(1) A dismissal that is not automatically unfair, is unfair if the
employer fails to prove—
(a) that the reason for dismissal is a fair reason—
(i) related to the employee's conduct or capacity;
or
(ii) based on the employer's operational
requirements; and
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(b) that the dismissal was effected in ac cordance with a
fair procedure.
(2) Any person considering whether or not the reason for
dismissal is a fair reason or whether or not the dismissal was
effected in accordance with a fair procedure must take into
account any relevant code of good practic e issued in terms of
this Act.”

[35] Against the above constitutional and statutory background, it is now necessary
to consider the provisions of section s 187(1)(f) and 187(2)(b) of the LRA to answer
the question: is a dismissal of an employee by the employer on the ground that the
employee has reached the normal or agreed retirement age automatically unfair when
the dismissal takes place after the employee has been allowed to work beyond the day
on which he or she reached the retirement age? In other words, may the employer rely
on section 187(2)(b) as a defence to justify such a dismissal?

[36] Section 186 of the LRA defines “dismissal” and reads:

“186 Meaning of dismissal and unfair labour practice
(1) ‘Dismissal’ means that—
(a) an employer has terminated employment with or
without notice;
(b) an employee employed in terms of a fixed-term contract
of employment reasonably expected the employer—
(i) to renew a fixed-term contract of employment on
the same or similar terms but the employer
offered to renew it on less favourable terms, or
did not renew it; or
(ii) to retain the employee in employment on an
indefinite basis but otherwise on the same or
similar terms as the fixed -term contract, but the
employer offered to retain the employee on less
favourable terms, or did not offer to retain the
employee;
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(c) an employer refused to allow an employee to resume
work after she—
(i) took maternity leave in terms of any law,
collective agreement or her contract of
employment; or
. . .
(d) an employer who dismissed a number of employees for
the same or similar reasons has offered to re -employ
one or more of them but has refused to re -employ
another; or
(e) an employee terminated employment with or without
notice because the employer made continued
employment intolerable for the employee; or
(f) an employee terminated employment with or without
notice because the new employer, after a transfer in
terms of section 197 or section 197A, provided the
employee with conditions or circumstances at work that
are substantially less favourable to the employee than
those provided by the old employer.”

[37] This was not the definition of “dismissal” at the time of the Waco judgment.
The definition in section 186(1) then was:

“186 “dismissal” means that –
(a) an employer has terminated a contract of employment
with or without notice;
(b) an employee reasonably expected the employer to
renew a fixed term contract of employment on the same
or similar terms but the employer offered to renew it on
less favourable terms, or did not renew it;
(c) an employer refused to allow an employee to resume
work after she—
(i) took maternity leave in terms of any law,
collective agreement or her contract of
employment; or
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(ii) was absent from work for up to four weeks
before the expected date, and up to eight weeks
after the actual date, of the birth of her child;
(d) an employer who dismissed a number of employees for
the same or similar reasons has offered to re -employ
one or more of them but has refused to re -employ
another; or
(e) an employee terminated a contract of employment with
or without notice because the employer made continued
employment intolerable for the employee.”

[38] In Waco10 the employee had gone beyond the agreed retirement age by about
three years. The agreed retirement age was 65 and he had turned 65 years of age in
1994 and, after reaching the agreed retirement age, the employee had continued to
work as usual. He was 67 years of age when he was dismissed. I held in Waco that
section 187(2)(b) was applicable to that case.11 This meant that, where an employee
had gone beyond the agreed retirement age and the employer dismissed him or her on
the ground of having reached the agreed retirement age , the employer may rely upon
section 187(2)(b) as a defence to an automatically unfair dismissal claim . This meant
that the dismissal would be regarded as fair.

[39] In Waco I had this to say:

“[16] The conclusion that s ection 187(2)(b) applies in this case
necessarily means that the dismissal of the applicant on grounds of
age is not automatically unfair and, therefore, s ection 187(1)(f) finds
no application in the matter. That, however, is not necessarily the end
of the matter as the next question is whether the dismissal falls into
the category of simply unfair dismissals. If the dismissal is not an
automatically unfair one, it may be that it is unfair on grounds other
than the grounds referred to in section 187(1). Whether or not the fact
that an employee has gone past the agreed or normal retirement age is

10 Waco above n 2.
11 Id at para 14.
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22
a fair reason to dismiss depends, in my view, on the meaning of the
provisions of section 187(2)(b). I turn to consider those provisions.”12

[40] I also said in Waco:

“[17] Initially I thought the provisions of s ection 187(2)(b) could
not apply to a matter such as this one where the employee has not only
reached but has gone beyond the agreed or normal retirement age.
The basis for this thought was that to apply section 187(2)(b) when the
employee has gone past the agreed or normal retirement age would be
extremely unfair and inequitable because the employer would be
dismissing the employee purely on grounds of age and would be doing
so in circumstances where there is no complaint that the age of the
applicant is affecting his job performance or competence adversely
nor would it be in circumstances where there is a complaint that the
operational requirements of the employer are adversely affected by the
employee’s age.
[18] It seemed to me that whereas prior to an employee reaching
the agreed or normal retirement age, a fair reason for dismissal is
required to exist before there can even be talk of a fair dismissal that
right of an employee to the existence of a fair reason before he can be
dismissed comes to an end upon his reaching the retirement age and
that there is no such right after the retirement age. I thought that the
legislature could never have intended to enact provisions with such
far-reaching implications without making that intention clear. Not
believing that such a serious inroad into the employee ’s right to the
existence of a fair reason to dismiss before he can be dismissed could
have been intended by the legislature in enacting s ection 187(2)(b), it
appeared to me that s ection 187(2)(b) applied to a situation where the
employee was dismissed on reaching the agreed or normal retirement
age and not where he has gone beyond that age.
[19] Ultimately I became convinced that s ection 187(2)(b) could
not apply where a contract of employment came to an end on the
employee reaching the normal or agreed retirement age because, if one

12 Id at para 16.
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23
considers the definition of the word ‘dismissal’ in s ection 186
carefully, it cannot be said that, in such a situation, the employee is
being dismissed. This is so because in that situation the contract of
employment comes to an end by the effluxion of time on the employee
reaching that age without the employer having to do anything.”13

[41] I wish to emphasise the point that there can be a dismissal of an employee
when he or she reaches the agreed retirement age where the terms of the contract of
employment are not such as to result in the contract of employment coming to an end
by the effluxion of time when the employee reaches the agreed retirement age. That
means that, if the situation is not one where the contract of employment comes to an
end by the effluxion of time, there may be a dismissal of the employee when he or she
reaches the normal or agreed retirement age.

[42] Another issue that arose for determination was whether an employer who
contemplates dismissing an employee on the ground of age when the employee has
long gone beyond the agreed retirement age is obliged to comply with a fair procedure
before dismissing the employee. I held in Waco that in such a case there was no
obligation on the employer to comply with a fair procedure other than giving a
contractual notice. I shall deal with this issue when I deal with the Solidarity matter
later in this judgment.

[43] There are at least three ways in which the employment contract between an
employer and an employee may come to an end on the basis of retirement. The first is
where the employer and employee are parties to a fixed term contract of employment
which provides that the contract will come to an end upon the employee reaching the
normal or agreed retirement age. In such a case the contract expires on the day on
which the employee reaches the normal or agreed retirement age with neither the
employer nor employee having to do anything to bring the contract of employment to

13 Id at paras 17-9.
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24
an end. In such a case the contract of employment between the parties expires by the
effluxion of time upon the employee reaching the agreed retirement age.

[44] The second and third ways relate to a situation where the contract of
employment between an employer and an employee is of an indefinite nature and
contains an agreed retirement age . Sometimes the agreed retirement age will be
contained in the contract of employment but sometimes it will be contained in a
separate document. Such separate document could be the pension fund rules or
provident fund rules applicable to the employer and employee. In such a case , the
contract of employment between the parties does not come to an end by the effluxion
of time or by the operation of law , somebody has to do something to bring about the
end of the contract. In such a case, the employer may take the decision to dismiss the
employee on the basis of the latter reaching the agreed retirement age . That is the
second way. The employee may also terminate the contract of employment on the
basis of reaching the agreed retirement age by resigning or retiring. That is the third
way.

The meaning of section 187(2)(b)
[45] In order to determine this appeal, it is important to understand the meaning of
section 187(2)(b). To understand the meaning of section 187(2)(b), it is important to
understand the phrase “. . . if the employee has reached the normal or agreed
retirement age . . .”. To determine the meaning of this phrase, an understanding of the
verb “reach” the verb “retire” and the noun “retirement” is important.

[46] What does reaching a certain age mean? The Cambridge International
Dictionary of English describes the verb “reach” as meaning “to arrive at or come to”.
Reaching a certain age means that the person has reached his or her birthday that
renders him or her to be a certain age.

[47] What does to “retire” mean? What does “retirement” mean? The
South African Concise Oxford Dictionary gives as one of the meanings of the verb
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25
“retire” as “leave one’s job and cease to work, especially because one has reached a
particular age.” (Emphasis added.) There are two very interesting features about the
meaning of the verb “retire” in the context of the present case. Firstly, it is that it
clearly says “retire” means leaving your job and ceasing to work. Secondly, it uses
the language and tense used in section 187(2)(b) when it says “especially because one
has reached” a particular “age”.

[48] One of the meanings that the Cambridge International Dictionary of English
gives for the verb “retire” is “to (cause to) leave your job or stop working because of
old age or ill-health”. It gives two sentences that are apposite to the present case. The
one sentence is: “He is due to retire as the Chief Executive next year” . The other is:
“If an employer retires an unwanted employee, they dismiss that person” . The same
dictionary gives th e following as the meaning of retirement: “Retirement is the point
at which someone stops working or the period in their life when they stop working”.

[49] When an employer dismisses an employee because the employee has reached
the retirement age, it can also be said that he or she retires the employee. When an
employee terminates his or her contract of employment based on age when he or she
has reached the retirement age, he or she can also be said to retire. We can say with
confidence that, when one talks about the concept of reaching an agreed retirement
age, one is talking about a point at which it has been agreed that an employee will
retire or will be retired or must leave his or her job and cease working.

[50] Going back to the meaning of the verb “reach”, in the context of reaching a
certain age the word means arriving at a certain age or coming to a certain age where
the employee will leave her job and cease to work. Given the meaning of the two
verbs, “reach” and “retire” in section 187(2)(b) the phrase “. . . if the employee has
reached the normal or agreed retirement age . . . ” refers to an employee ceasing to
work or leaving his or her job on grounds of age when he or she arrives at or comes to
a certain age that has been agreed upon as the year for the employee to leave work.
Agreed retirement age is the agreed point at which retirement will happen. It is an
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26
agreement about a common point at which employees will retire or will be retired.
The term “agreed retirement age” means that the parties have agreed that a certain age
is the age when employees will retire or will be retired.

[51] Another important consideration is the purpose of fixing or prescribing or
agreeing upon a retirement age. What do the parties intend in fixing or agreeing upon
a retirement age? When an employer and an employee agree upon a retirement age,
for example 65 years of age, the purpose is that, when the employee reaches age 65,
he or she will retire. It would serve no purpose for a collective agreement or any
agreement to fix a retirement age applicable to a certain employer or group of
employers and their employees if the employers are free to retire their employees then
if they like or to retire them at any other time thereafter as they please. Such agreed
retirement age would in due course become superfluous or redundant. Imagine an
employer who decides unilaterally that the agreed retirement age does not suit him
and, therefore, never retires his or her employees when they reach the agreed
retirement age but always retires them two years after the agreed retirement age.

[52] If the agreed retirement age is 60 years but the employer is free to retire his
employees who are subject to that agreed retirement age at 63, then , if he ends up
normally retiring his employees at 63, then age 63 will become the normal retirement
age as contemplated in section 187(2)(b) . What I have just described immediately
above can happen if the third judgment’s interpretation is to be the law. The difficulty
with the state of affairs that such interpretation creates is this: Section 187(2)(b) refers
to both a “normal ” and an “ agreed” “retirement age ”. The “or” between the words
“normal” and “agreed” in section 187(2)(b) is disjunctive. The section contemplates
that in an establishment there will either be a normal retirement age or an agreed
retirement age for employees and that the same employees cannot be subject to both
an agreed retirement age and a normal retirement age. A normal retirement age
applies where there is no agreed retirement age. To subject employees to both a
normal and an agreed retirement age at the same time is the effect of both the
judgment (second judgment) by my Colleague, Van Zyl AJ, and the judgment (third
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27
judgment) by my Colleague, Rogers J, both of which I have had the pleasure of
reading.

[53] Once an employee is subject to an agreed retirement age, a normal retirement
age does not apply. Similarly, if an employee is subject to a normal retirement age
because he or she has not agreed to any retirement age, there is no agreed retirement
age applicable to him or her. Therefore, as I have said, an employee cannot be
subjected to both at the same time. In my view, the interpretation adopted by the third
judgment is not what is contemplated by the section.

[54] The second judgment’s interpretation could also result in employees being
subjected to both an agreed retirement age and a normal retirement age at the same
time. The second judgment is to the effect that, where there is an agreed retirement
age, an employer is free to dismiss an employee (for retirement purposes) when the
employee reaches that age , for example, . on his or her birthday or to dismiss him or
her within a reasonable time after that date. It is not clear to me how long the delay
would have to be before the delay can be said to be unreasonable. However, if a year
later were to fall within the reasonable period, then an employer whose employees are
subject to an agreed retirement age of 60 could also, of course, be subject to a normal
retirement age of 61 if the employer develops a norm to retire his employees at 61
despite the existence of an agreed retirement age of 60 in the organisation.

[55] Furthermore, imagine an industry where there are about 200 employers all of
whom are bound by a collective agreement which provides that the retirement age is
65 years. If every one of the 200 employers is free to disregard the agreed retirement
age and choose an age of their choice as the age at which they will retire their
employees and still be able to invoke the protection of section 187(2)(b), that would
render the agreed retirement age in the collective agreement redundant. If trade
unions in an ind ustry or sector concluded a collective agreement with a provision for
an agreed retirement age of, for example 65 years of age, and employers simply
ignored age 65 for the purposes of the retirement of their employees and they retired
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28
employees at any ages of their choice between 65 and, for example, 75, trade unions
would be up in arms against those employers for ignoring a collective agreement.

[56] The third judgment’s interpretation of section 187(2)(b) effectively means that
it would be in order for employers who are party to agreements on retirement ages to
disregard the agreed retirement age and behave as if they are in an industry that has no
agreed retirement age. I can see neither sense nor logic in an employer or group of
employers in an industry having an agreed retirement age for employees if every
employer would be allowed to ignore the agreed retirement age and simply retire their
employees at any age beyond the particular agreed retirement age. The interpretation
adopted by the third judgment has this effect.

[57] Prior to reaching an agreed retirement age , an employee may not be dismisse d,
on the ground of age. If he or she is dismissed on such a ground, the dismissal would
constitute an automatically unfair dismissal in terms of section 187(1)(f) of the LRA .
It would also constitute unfair discrimination on the basis of age and a violation of
section 6(1) of the Employment Equity Act where the Employment Equity Act
applies. If there is an agreed retirement age and the employer dismisses the employee
upon the latter reaching the agreed retirement age , section 187(2)(b) of the LRA
applies and the dismissal is fair. There is also no obligation on the employer to afford
the employee procedural fairness in such a case because the parties agreed that the
employee’s contract of employment would be terminated upon him or her reaching the
agreed retirement age. The employer’s decision in such a case does not adversely
affect any of the employee’s rights because the employee has previously agreed that,
when he or she reaches that age, the employer may dismiss him or her . Under the
Solidarity case, which I deal with later in this judgment, I also deal with the statutory
basis for this proposition.

[58] The approach adopted in Waco is that an employee who reaches the agreed
retirement age but continues to work as usual beyond the agreed retirement age may
still be dismissed by the employer on the basis that the employee has reached the
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agreed retirement age and such dismissal will be fair. On that approach, the employer
may dismiss the employee a few days or a few weeks or months or even some years
after the employee reached the agreed retirement age and rely on section 187(2)(b) to
defend the fairness of the dismissal. In Waco the Labour Court held that in a case
where an employer dismissed an employee after he or she has passed the agreed
retirement age, there was no duty on the part of the employer to hear the employee. 14
This finding in Waco meant that except for the obligation to give a contractual notice
of the termination of the contract of employment, the employer had no obligation to
follow a fair procedure before dismissing an employee on such a ground in such
circumstances.15

[59] Let me deal with the Waco approach to the substantive fairness of a dismissal
where the employer dismisses an employee beyond the agreed retirement age on the
ground that the employee has reached the agreed retirement age. The Waco approach
is open to abuse because the employer may dismiss the employee for another reason
but rely on the fact that the employee “has reached” the agreed retirement age to
justify the dismissal. For example, there could be a lawful or protected strike in which
workers who have worked beyond the agreed retirement age participate and the
employer may dismiss those employees and say it is because they have reached the
agreed retirement age when it is in fact dismissing them for their role in the strike. If
there were many such employees and they were dismissed more or less at the same
time, it may be that a Court could be persuaded that the reason for their dismissal is
their role in the strike and not that they had reached the agreed retirement age.
However, if they were dismissed some time after the strike, it may be difficult to show
that the reason for the dismissal is their role in the strike even though in truth the
reason for their dismissal is their role in the strike.

[60] Another scenario in which the Waco approach would be open to abuse by an
employer relates to retrenchment. Section 41(2) of the Basic Condition s of

14 Waco above n 2 at para 26.
15 Waco above n 2 at para 33.
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Employment Act16 places an obligation on an employer who retrenches (i.e. dismisses
for its operational requirements) an employe e to pay such employee severance pay
equal to at least one week’s remuneration for each completed year of continuous
service with that employer unless the employer has been exempted from this
obligation.17 This means that, for example, if an employee has been with the same
employer for, for example, 24 years, the severance pay will be equal to remuneration
for 24 weeks which is six months’ remuneration. If the employer has reason to
retrench workers, it would first dismiss those who have gone beyond the agreed
retirement age and say the reason for the dismissal is that the employees concerned
have reached the normal or agreed retirement age and they are not being retrenched.
The employer will know that, if it gives th is reason as the reason for the dismissal and
says that the workers are not being retrenched, it will not be obliged to pay severance
pay to them. The employer will know that, if it says that those employees are being
retrenched, it will be obliged to pay severance pay. Such employees are likely to have
served the employer for many years and the amounts of severance pay payable to
them if they were retrenched after many years of service could be huge.

[61] Another way in which an employer may abuse the interpretation of
section 187(2)(b) adopted by Waco and by the third judgment i s this. If an employer
suspects that an employee who has reached the normal or agreed retirement age (as
interpreted by Waco and the third judgment) of having committed misconduct but
either cannot prove it in a disciplinary hearing or does not want to go through the
“trouble” of a disciplinary process, it will be able to just dismiss or retire such
employee and say the reason is that the employee has reached the normal or agreed
retirement age and not that the employee is dismissed for misconduct. The employer
would know that, if it gave the reason that the employee has reached the normal or

16 Act 75 of 1997.
17 Section 41(2) of the Basic Conditions of Employment Act reads:
“An employer must pay an employee who is dismissed for reasons based on the employer’s
operational requirements severance pay equal to at least one week’s remuneration for each
completed year of continuous service with that employer, calculated in accordance with
section 35.”
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31
agreed retirement age, it would be protected by section 187(2)(b) which would be
unlikely to result in a legal challenge whereas, if it said that the reason for dismissal
was misconduct, that could be challenged in arbitration.

[62] What also exacerbates the situation is that the playing fields are significantly
uneven. An example of this unequal bargaining power is that the employer may hold
on to the employee for as long as necessary subject to the employee’s willingness to
continue working. However, for the employee the employment could be terminated
on a week’s or month’s notice. An employee in such a situation of vulnerability will
not be able to plan his or her future or finances properly because, on the approach of
the second and third judgments, it is the prerogative of the employer to unilaterally
decide when the employee m ust stop working after he or she has reached his or her
normal or agreed retirement age birthday. So, while in this situation, it could be said
that either party may terminate the contract of employment on a week’s or a month’s
notice, in truth and reality this is a power that would mostly be exercised by the
employer and not the employee. This means that an interpretation of section
187(2)(b) that allows the employer to rely on this provision as a defence when it
dismisses an employee after the employee has reached the normal or agreed retirement
age renders such category of employees vulnerable to abuse by the employer.

[63] The second and third judgments reject this point on the basis that, if it is
suspected that the reason for dismissal given by the employer is not the true reason,
what the true reason is will be determined by the court or an arbitrator, as the case
may be, when the fairness of the dismissal is challenged. My difficulty with this
criticism is this. Let us imagine that, one or two employees who have worked beyond
their agreed retirement birthday played a prominent role in organising a protected
(lawful) and very effective strike against the employer. After the strike has ended, the
employer dismisses them or retires them on the ground that they have reached the
normal or agreed retirement age. In such a case, how are employees going to prove
that the reason the employer gives for the dismissal of the employees concerned is not
the true reason?
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32

[64] If you accuse the employer of actually dismissing them for their role in
organising a very effective strike against him, the employer will say: “But the strike
they organised was a protected strike and I know that I cannot dismiss them for that. I
am telling you that, in terms of the law, once they have worked beyond their
retirement age birthday, I may dismiss them on the ground that they have reached the
agreed retirement age at any time. It is up to me when I do it.” If the employer says
this, it will be almost impossible for anybody to prove that the true reason for the
dismissal of the employees is not the one advanced by the employer. So, the
employer will be able to abuse the interpretation adopted by the second and third
judgments and get away with it.

[65] The interpretation of section 187(2)(b) that allows the employer to choose its
own time when to dismiss an employee who has reached the agreed retirement age
should be avoided because it is open to abuse by employers. In any event ,
section 187(2)(b) must be interpreted restrictively because it is a provision that limits
the right not to be unfairly discriminated against on the ground of age as entrenched in
section 9(3) and (4) of the C onstitution. Section 9(5) provides that such
discrimination is unfair unless it is established that it is fair. That means that it prima
facie constitutes unfair discrimination. The Waco interpretation places employees
who work beyond the agreed retirement age in a vulnerable position. It weakens the
position of workers more than it is already weak ened. It places the employer in a n
unduly strong position in relation to workers in such circumstances.

[66] The approach adopted in the second judgment does not focus on the correct
interpretation of section 187(2)(b) but rather on whether the employer can be said to
have waived his right to dismiss the employee when he did not dismiss him (i.e. the
employee) at the time he reached his normal or agreed retirement age. The approach
of the second judgment appears to be based , to a large extent, on principles of
common law that favour the employer rather than adopt an approach that seeks to take
into account the interests of both employers and employees.
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[67] The second judgment fails to give effect to the balance which this Court
directed in NEHAWU18 should be struck in interpreting the LRA to give effect to the
concept of fair labour practices. In NEHAWU this Court had this to say which I find
important as we consider the meaning of section 187(2)(b):

“[T]he focus of s ection 23(1) is, broadly speaking, the relationship
between the worker and the employer and the continuation of that
relationship on terms that are fair to both . In giving content to that
right, it is important to bear in mind the tension between the interests
of the workers and the interests of the employers which is inherent in
labour relations. Care must therefore be taken to accommodate, where
possible, these interests so as to arrive at the balance required by the
concept of fair labour practices. It is in this context that the LRA must
be construed.” [Emphasis added.]

The third judgment also suffers from the same failure as the second judgment in this
regard.

[68] Another interpretation of section 187(2)(b) must be sought if there is one that
would not strain the language of the section. The Waco interpretation is based on
interpreting the phrase “has reached the normal or agreed retirement age . . . ” in
section 187(2)(b) to be wide enough to include the dismissal of an employee long after
the employee has gone beyond the agreed retirement age. In other words, on that
interpretation, even after a year or two or even three years since the employee reached
the agreed retirement age, the employer would be entitled to justify the dismissal with
reference to the fact that the employee has reached the agreed retirement age and,
therefore, may still be dismissed and in terms of section 187(2)(b) the dismissal would
be fair.


18 NEHAWU above n 6.
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[69] Another interpretation of the phrase “has reached the normal retirement or
agreed retirement age” is that this phrase refers to a situation where an employee
reaches or has just reached the agreed retirement age but not one who has worked
beyond the day when he or she reached the agreed retirement age . That means that
the employee must retire on the day on which he or she reaches the agreed retirement
age. In terms of this interpretation the dismissal which section 187(2)(b) says is fair is
a dismissal based on age that is effected on the day when the employee reaches the
retirement age. It is in respect of such a dismissal that an employer may use section
187(2)(b) as a shield or as protection against a claim for an automatically unfair
dismissal. That, in my view, is the correct interpretation of section 187(2)(b) because
it heeds the injunction of section 39(2) of the Constitution.

[70] The construction of section 187(2)(b) adopted in this judgment gives effect to
the spirit, purport and objects of the Bill of Rights. It is consistent with the right to
human dignity and promotes the right to fair labour practice as enshrined in our
Constitution. It limits the situations in which discrimination on grounds of age is
permitted – which is prima facie unfair discrimination – to the absolute minimum.
The Waco interpretation expands the category of employees on whom this
discrimination on grounds of age is visited. The interpretation that Waco gave to
section 187(2)(b) is not consistent with the fundamental values of our Constitution and
is not to be preferred. It allows for the abuse of section 187(2)(b) of the LRA. In this
regard I emphasise that in Waco the Labour Court did not heed the injunction in
section 39(2) concerning the interpretation of legislation . In part this may well have
been because our Constitution was relatively new at the time. It was less than two
years old.

[71] The interpretation adopted in this judgment limits the period when an employer
may dismiss an employe e on grounds of age . There is also no room for the employer
to abuse the section 187(2)(b) defence or protection. It is only available on the day
that the employee reaches the agreed retirement age and on no other day. This will
not cause any unfairness to employer s because an employer will be able to keep an
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35
eye on when each employee will reach the agreed retirement age and prepare for that
eventuality in good time. The employee will also be able to plan his or her life
properly knowing exactly when he or she will retire. The employer has to give the
employee notice of the termination of the contract of employment or notice pay in lieu
of notice when the contract of employment will not be coming to an end by the
effluxion of time or by the operation of law.

[72] Obviously, it is up to the employer and the employee to change the agreed
retirement age or to conclude a new contract of employment that will govern the
period after the agreed retirement age. The conclusion reached above renders it
unnecessary to decide the question whether or not an employer who allows an
employee who has reached an agreed retirement age to continue working as usual
beyond the agreed retirement age waives the right to rely on section 187(2)(b) of the
LRA to dismiss the employee. The position is simply that the defence or protection of
section 187(2)(b) is only available to an employer who dismisses the employee on the
latter reaching the agreed retirement age. That happens if the dismissal is effected on
the day the employee turns 60 years of age if the normal or agreed retirement age is 60
years. It is not available to an employer who allows the employee to work beyond the
agreed retirement age and dismisses the employee thereafter on the ground that the
employee has reached the agreed retirement age . However, if the contract of
employment or a collective agreement that makes provision for the normal or agreed
retirement age provides that the employee will retire or will be retired on the last day
of the month in which the employee reached the normal or agreed retirement age, that
will not offend the interpretation of section 187(2)(b) adopted in this judgment.

[73] The result of the above is that the section 187(2)(b) protection or defence upon
which the respondent relied to justify Mr Landman’s dismissal was no longer
available to the respondent when it dismissed Mr Landman nine months after he had
reached the agreed retirement age. This, therefore, means that Mr Landman’s
dismissal is not protected by section 187(2)(b) and there is no other justification
advanced for his dismissal other than age. There is no complaint that, because of age,
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36
Mr Landman could no longer perform his duties satisfactorily. Accordingly, the
dismissal constitutes unfair discrimination and is a violation of section 6(1) of the
Employment Equity Act. This also means that the dismissal was automatically unfair
as contemplated in section 187(1)(f) of the LRA. Therefore, the appeal against the
decision that the dismissal was fair must succeed.

Remedy
[74] Mr Landman does not seek reinstatement. He only seeks maximum
compensation applicable to an employee whose dismissal is found to have been
automatically unfair. That is an amount equal to the employee’s remuneration over a
period of 24 months. If Mr Landman had sought reinstatement, it is likely that an
order of reinstatement with retrospective effect would have been granted. In financial
terms that would have cost the respondent far more than the compensation equal to 24
months’ remuneration. By not claiming reinstatement in a case where his
performance of work was not adversely affected by his age, Mr Landman has ensured
that the respondent does not have to pay backpay that in terms of retrospectivity of
reinstatement would have been more than 24 months’ remuneration.

[75] If Mr Landman had sought reinstatement, I cannot see what could have stood in
the way of the Court granting such an order. Furthermore, it was not the respondent’s
case that at the time of Mr Landman’s dismissal, he was no longer able to perform his
duties satisfactorily as a result of advanced age. That being the case, it is fair to infer
that Mr Landman could have continued working for some years before he could reach
the point where, as a result of advanced age, he would no longer be able to perform
his duties satisfactorily. By dismissing him at the time it did, the respondent deprived
Mr Landman of the opportunity of working for at least a few more years before he
could reach that point.

[76] Furthermore, it was common cause that the Motor Industry Provident Fund
paid Mr Landman R1 034 430,13 but that, if he had been allowed to work until he
retired when he was 65 years of age, he would have been paid R1 674 127,56. This
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means that Mr Landman was denied the opportunity to earn an extra R600 000,00.
Therefore, compensation that is equal to 24 months’ remuneration is not excessive.
Mr Landman also did not claim any interest to be added to the amounts of this
compensation. That has also benefitted the respondent. Furthermore, it was common
cause that as at the time of the trial Mr Landman had not as yet found another job.
The trial in the Labour Court was on 26 November 2020. That was just under two
years since dismissal. He was dismissed on 12 February 2019. In my view, it accords
with the dictates of fairness and equity that the maximum amount of compensation be
awarded to Mr Landman.

Costs
[77] With regards to costs the law is that in labour matters whether or not costs
should be awarded to the successful party depends on what the requirements of law
and fairness dictate. They do not automatically follow the result. Yet, a party who is
successful must not be placed in a situation where, if he or she is not granted costs, the
costs of pursuing the matter will be such that he or she is hardly left with anything.
The Court must try and strike a fair balance. A dismissal for a reason listed in
section 187(1) of the LRA is a serious violation of the employee’s rights.
Furthermore, i n this case the employer has really benefitted from the fact that
Mr Landman did not seek reinstatement. In my view, the respondent should be
ordered to pay the applicants’ costs in all the Courts.

[78] In the circumstances, the appeal should be upheld and the decisions of the
Labour Appeal Court and the Labour Court should be set aside. The order of the
Labour Court should be replaced with one that is consistent with the above
conclusions.

The Solidarity Case
[79] In the Solidarity matter, Solidarity, a registered trade union, makes an
application for leave to appeal against a decision of the Labour Appeal Court refusing
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it leave to appeal against a judgment and order of the Labour Court. Solidarity brings
that application on behalf of six individuals who were its members and were
dismissed by the State Information Technology Agency SOC Ltd (SITA), the
respondent in the Solidarity matter. I shall refer to the respondent as either the
respondent or the SITA.

[80] The six individuals on whose behalf Solidarity brings the application are:
(a) Mr Christopher Gerhadus Viljoen Strydom;
(b) Mr Alwyn Enslin;
(c) Mr Andreas Olivier;
(d) Ms Wilma Ena Smith;
(e) “Ms Sonia du Plessis (deceased)”; and,
(f) Ms Petra Van den Berg.
Ms du Plessis had died by the time the trial came to an end in the Labour Court. In its
judgment the Labour Court made an order of substitution replacing Ms du Plessis with
Ms Theresilda Sieglinda Lötter from Erasmus, Lötter and Co who had been appointed
as the executrix of Ms du Plessis’ late estate.

[81] In the founding affidavit in support of Solidarity’s application for leave to
appeal, the deponent thereto said that Solidarity was bringing the application on behalf
of the six members listed above including Ms du Plessis (deceased). It is not stated
that Solidarity brings that application on behalf of Ms Lötter in her capacity as the
Executrix of the late estate of Ms du Plessis. Solidarity cannot act on behalf of
someone who has died. Only an executor or executrix may do so in the sense that he
or she may represent the estate of such a person. Solidarity could, therefore, not act on
behalf of Ms du Plessis after she has passed on.

[82] Directions were issued to the parties directing them to clarify the status of Ms
Lötter in these proceedings. In other words, the parties were directed to state whether
Ms Lötter, in her capacity as the executrix of Ms du Plessis’ estate, is an applicant in
these proceedings and whether Solidarity had a mandate to act for her. In response to
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the directions, Ms Lötter filed an affidavit. Mr Hendrik van Hoven, who described
himself as the Head of the Labour Court litigation in Solidarity, filed a confirmatory
affidavit. The SITA did not file anything by the deadline. It is fair to assume that it
does not dispute what is said in Ms Lötter’s affidavit and in Mr van Hoven’s
confirmatory affidavit. The essence of what Ms Lötter says in her affidavit is that she
had authorised Solidarity to represent her in her capacity as the executrix of Ms Du
Plessis’ estate. Mr Van Hoven confirms what Ms Lötter says and goes on to say that
Solidarity has acted under the authority and instruction of Ms Lötter in her capacity as
the executrix of the estate of the late Ms Du Plessis as stated in her affidavit.

[83] It seems to me that Ms Lötter authorised Solidarity to act for her in her
representative capacity and bring an application for leave to appeal in this Court.
However, strictly speaking, Solidarity did not do so because it never said it was also
acting on her behalf in bringing this application. Owing to this omission or failure on
the part of Solidarity, Ms Lötter is, strictly speaking, not an applicant before us nor did
Solidarity purport to act on her behalf in bringing this application. It said it acted for,
among others, Ms Du Plessis whom, technically, it could no longer represent because
she had died. Despite the fact that Solidarity did not, strictly speaking, purport to act
for Ms Lötter and that Ms Lötter was not an applicant before us, I am of the view that,
in the circumstances of this case, this is an omission that this Court may overlook. I
say this because:
(a) in the Labour Court Ms Lötter was substituted for the late Ms Du
Plessis.
(b) Solidarity, in seeking to include Ms Du Plessis, expressly stated that
she was “deceased”. It is clear that Solidarity sought to include Ms Du
Plessis in the matter and put her as one of the persons for whom it was
acting;
(c) Solidarity had been instructed or authorised by Ms Lötter to act for her
to bring the application for leave to appeal but it did not carry out this
instruction;
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(d) the dispute between the late Ms Du Plessis and the respondent is the
same as the disputes between the other individual applicants and the
respondent which we are dealing with in this judgment;
(e) the respondent does not oppose the accommodation of Ms Lötter in
these proceedings.

[84] In the light of all this, if there is an order to be made in favour of the other
individual applicants, an appropriate order will also be made in favour of Ms Lötter in
her representative capacity as the executrix of the estate of the late Ms Du Plessis.

[85] I shall refer to the individuals as the individual applicants even though strictly
speaking they were not individuals. I do this for convenience. Before going further, it
is necessary to set out the factual background to the Solidarity dispute with the
respondent. The dispute between the parties was whether or not the dismissal of the
individual applicants by the respondent on the basis that they each had reached the
agreed retirement age as contemplated in section 187(2)(b) of the LRA, even though
the dismissals had happened months or even a year or some years after each employee
had reached the agreed retirement age, were automatically unfair. If they were, the
next question will be whether the individual applicants should be paid compensation
and, if so, how much compensation they would be paid.

Background
[86] Unlike the Landman case, which was adjudicated as a stated case, the
Solidarity case was a trial. In respect of each individual applicant involved in the
case, Solidarity filed and served a statement of claim. The respondent filed a
statement of defence or a response to each individual applicant’s statement of claim.
Solidarity filed one or more amended statements of case. The respondent filed and
served its amended statement of defence.

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[87] In respect of each individual applicant’s case the parties concluded and signed
a pre-trial minute. Later, Solidarity and all the individual applicants, on the one hand,
and the respondent, on the other, concluded and signed a joint pre-trial minute.

[88] The individual applicants signed contracts of employment with the respondent.

[89] The respondent had its conditions of employment which will be referred to as
the SITA Conditions of Employment which were effective from 2 December 2011.
Such conditions included the SITA Termination of Employment Policy which became
effective from 19 February 2008.

[90] Clause 6.3 of the SITA Termination of Employment Policy bore the heading:
“Termination of Services.” Clause 6.3.1 has two paragraphs. They read thus:

“6.3.1. Termination on reaching retirement age
The retirement fund provides retirement benefits for employees who
complete their careers in SITA’s service. The retirement age for
employees is as defined in the SITA Conditions of Employment and /
or the respective Pension Retirement Fund rules.
An employee may apply to continue working beyond normal
retirement age. Any decision to allow an employee to continue
working beyond normal retirement age shall be taken by the head of
department in consultation with the Human Resources department.
Any decision in this regard should be based on operational
requirements, fitness of the employee (should be confirmed in writing)
and applicable fund rules.”

[91] Clause 1 of the SITA Employment Conditions reads as follows in part: -

“Rationale
These employment conditions, with related policies and management
directives issued by the SITA from time to time in its prerogative,
determine the working conditions within which employees still
perform their functions.
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When employed by the SITA, it shall be deemed that the employee
has accepted these agreed upon employment conditions. Unless
otherwise agreed in writing, these employment conditions shall be
regarded as an integral part of the service contract between the
employee and the SITA.
. . .”

[92] Clause 9.18 of the SITA Employment Conditions reads:

“Retirement age
Retirement age specifications shall be set according to the rules of the
relevant pension or retirement funds.”

[93] Clause 9.19.1(b)(i) and (ii) of the SITA Employment Conditions, which relate
to Alexander Retirement Fund, reads as follows:

“9.19.1 Defined contribution funds
(a) Denel Retirement funds
(i) . . .
(b) Alexander Forbes Retirement Fund
(i) The normal retirement age of the fund is the last
day of the month in which a member reaches the
age of 60. A member who transfers from another
company approved pension fund or approved
provident fund shall retain his previous retirement
age of 65 in terms of the rules of such approved
pension fund or approved provident fund.
(ii) Subject to the consent of SITA, a member who has
reached his normal retirement date and normal
retirement age of 60 or 65, whichever is
applicable, may remain in service and retire at a
date not later than the last day of the month in
which the member attains the age of 67 .
Contributions by and on behalf of the member
shall cease after the normal retirement date and
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the employee forfeits the death, disability and
funeral benefits should the employee pass away
or become disabled while in the service of
SITA.” (Emphasis added).

[94] In the trial bundle used by the parties there was a document titled:

“Alexander Forbes Retirement Fund (Pension Section)
Special Rules Applicable to State Information Technology
Agency (Proprietary) Limited.”

The following appeared immediately below this title:

“The General Rules of the Alexander Forbes Retirement Fund
(Pension Section) shall be read in conjunction with these Special
Rules which shall apply to the Eligible Employees of the Employer
with effect from the Participation Date.”

The participation date is 1 April 2005.

[95] Rule 6 of the Special Rules reads:

“6 Normal Retirement Date in terms of General Rule 2:
The last day of the month in which a member reaches age 60 years;
provided that a member who transfers from another Approved Pension
Fund or Approved Provident Fund or shall retain his previous
retirement age of 65 years in terms of the rules of such Approved
Pension Fund or Approved Provident Fund.”

[96] However, Rule 5.2, which is titled: “Retirement from Service”, provides as
follows in Rule 5.2.1 and 5.2.2:

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“5.2.1 A member who has reached age 55 years may retire from
Service on the last day of any month occurring before he reaches his
Normal Retirement Date provided that a member who is not a member
of the Alexander Forbes Retirement Fund (Provident Section) who is
at least 50 years of age and is within 10 years of his Normal
Retirement Date may retire on the last day of any month occurring
before he reaches his Normal Retirement Date.
5.2.2 A member who has not retired in terms of Rule 5.2.1 must
retire from Service on reaching his Normal Retirement Date unless his
Employer agrees in writing to his remaining in Service after that
date.”

[97] Clause 2.1.18 of the contract of employment defines “Termination Date” as
meaning “the retirement age specifications set according to the rules of the relevant
pension or retirement funds or any other earlier date as envisaged in terms of this
Agreement”.

[98] In October 2017 Ms Petra Van den Berg received a letter of dismissal from the
respondent dated 11 October 2017. That letter read as follows:

“Dear Ms Petra Van den Berg
Our records indicate that on the 05 th of August 2017 you reached
another milestone celebrating your 62nd birthday. According to the
SITA conditions of employment clause 9.18 you were due to retire at
the end of August 2015. We would like to take this opportunity to
inform you that your services with SITA will as a result of your
retirement come to an end on the 31st December 2017.
Your valuable input in making SITA a success is highly appreciated.
We take this opportunity to wish you well in your much deserved rest.
Sincerely
Moeketsi Hlabanelo 11/10/2017
Acting HOD: Human Capital Date”

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All the individual applicants received similar letters except for the differences in the
names of the addressees and dates for reaching the retirement age and when each one
was advised he or she would leave the organisation.

[99] After each one of the individual applicants had received their respective letters
informing them of their respective last days in the organisation, he or she lodged a
grievance with the respondent complaining about the letter. The respondent
considered the grievances of the individual applicants and concluded that they were
without merit and rejected them.

Labour Court
[100] After the respondent had rejected the individual applicants’ grievances about
their dismissals, Solidarity contended that the dismissals were automatically unfair as
they were in breach of section 187(1)(f) of the LRA. The respondent disputed that
contention and contended that its decisions to dismiss the individual applicants were
covered by section 187(2)(b) of the LRA which meant that the dismissals were fair.
These disputes were referred to conciliation but could not be resolved. Ultimately,
Solidarity referred these disputes as separate disputes to the Labour Court for
adjudication. However, as the individual disputes raised more or less similar legal
issues, they were consolidated by an order of the Labour Court.

[101] On the above factual background, Solidarity’s case was that the respondent
had dismissed the individual applicants on grounds of age and the dismissals
constituted unfair discrimination. They also contended that their dismissals
constituted automatically unfair dismissals. They accepted that there was a normal
retirement age of 60 years applicable to them but made two points in that regard.
Firstly, they contended that, since the respondent did not dismiss them when they
reached the retirement age of 60 years but dismissed them either months later or a
year or two or even three years later, it (i.e. the respondent) had no right to dismiss
them at that stage on the basis that they had reached the normal retirement age of 60
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46
years unless it had reached agreement with the employe es on a new retirement age
which had not happened.

[102] Secondly, the applicants contended that, in any event, the respondent’s
conditions of employment applicable to them provided that, subject to the
respondent’s consent, they could continue working beyond the normal retirement age
of 60 years in which case they would have a right to retire any day from the normal
retirement age of 60 years up to age 67. The applicants then contended that the
respondent had consented to them working beyond the age of 60 years and retiring
when they reached 67 years of age. In substantiation hereof the applicants pointed out
that the respondent allowed the individual applicants to work beyond age 60 and gave
them work instructions throughout that period and even gave them salary increases.

[103] In its statement of defence or response to each applicant’s statement of case
the respondent denied that it had dismissed the individual applicants. Its denial was
strange, given its letter to each one of the individual applicants in which it told them
when they had reached the normal retirement age of 60 and notifying them of their
last working day. In the end the respondent’s defence was that, since each individual
applicant had worked beyond their normal retirement age of 60 years by the time it
dismissed them, the dismissal was fair by reason of section 187(2)(b). In other words,
the respondent’s contention was that, when an employer does not dismiss an employee
when the latter reaches their normal retirement age and allows him or her to work
beyond such age, the employer has a right to dismiss the employee at any time it
chooses thereafter and such dismissal would be fair in terms of section 187(2)(b). The
respondent contended that this was what it had done in this case.

[104] The respondent submitted that, when it did not dismiss the individual
applicants when they respectively reached their normal retirement age, it did not
waive its right to dismiss them at any time thereafter. The respondent, therefore,
invoked section 187(2)(b) to justify the dismissal of each one of the individual
applicants. Furthermore, the respondent contended that it never consented that the
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individual applicants should work beyond the ir normal retirement age and retire when
they reached 67 years of age. The respondent took this position despite the fact that it
was common cause that respondent had allowed the individual applicants to work
beyond the agreed retirement age and between that stage and their last day at the SITA
had continued to give each one of the individual applicants work instructions.

[105] The Labour Court, through Nkutha -Nkontwana J, concluded that the
dismissals were not automatically unfair. The reason given was that, once an
employee has worked beyond the date on which he or she reached the normal
retirement age, the employer is entitled to dismiss him or her at any time thereafter on
the basis that the employee has reached the normal retirement age. It said that the
employer is entitled in those circumstances to invoke the section 187(2)(b) shield or
protection against a claim that the dismissal is automatically unfair. In essence the
Labour Court relied on Waco to dismiss Solidarity’s claim. Solidarity then applied to
the Labour Court for leave to appeal to the Labour Appeal Court against the Labour
Court’s judgment and order. The Labour Court dismissed that application on the basis
that there were no reasonable prospects of success for the intended appeal.

Labour Appeal Court
[106] Solidarity then petitioned the Labour Appeal Court for leave to appeal to it
against the judgment and order of the Labour Court. The Labour Appeal Court,
through Waglay JP, Coppin JA and Setiloane AJA, dismissed that petition. In its brief
reasons the Labour Appeal Court said that essentially it was, in general terms, in
agreement with the judgment and order of the Labour Court and took the view that
there were no reasonable prospects of success for the intended appeal. It also said that
there was no compelling reason why leave to appeal should be granted.


In this Court
[107] Solidarity then applied to this Court for leave to appeal against the decision of
the Labour Appeal Court and the judgment and order of the Labour Court.
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Jurisdiction and leave to appeal
[108] For the reasons given in the Landman case above, this Court has jurisdiction
and leave to appeal should be granted.

The appeal
[109] For the reasons given in the Landman case above in support of the conclusion
that Mr Landman’s dismissal was automatically unfair I conclude in the Solidarity
matter, too, that the dismissals of the individual applicants were automatically unfair.
This is because, as in the Landman case, the dismissals of the individual applicants in
the Solidarity matter were not effected on the days on which they reached the normal
retirement age but were effected after such dates. I say this mindful of the fact that in
the Landman case there was an agreed retirement age between the parties whereas in
the Solidarity matter the agreement between the parties was effectively that the normal
retirement age specified in the Rules of the Alexander Forbes Retirement Fund was
the normal retirement age applicable to the individual applicants. The reasoning I
adopted in the discussion of the Landman case applies with equal force to a case such
as the Solidarity matter where there is a normal retirement age and not an agreed
retirement age. However, in the Solidarity matter there is a further ground on the
basis of which I also conclude that the dismissals of the individual applicants were
automatically unfair. I deal with it below.

[110] The applicants also contended that, in continuing to work for the respondent
beyond the dates on which they reached the normal retirement age, they did so with
the consent of the respondent. They further submitted that, in those circumstances,
they were entitled to work until age 67. They submitted that, once the respondent had
allowed them to work beyond the normal retirement age of 60, the respondent had no
right to retire them against their will before they reached age 67. In this regard they
relied on the conduct of the respondent as well as clause 9.19.1(b)(i) and (ii) of the
SITA Employment Conditions. These provisions have been quoted above. However,
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because of their importance, I consider it important to quote them again.
Clause 9.19.1(b)(i) and (ii) reads:

“. . .
[1] (b) Alexander Forbes Retirement Fund
(i) The normal retirement age of the fund is the last day
of the month in which a member reaches the age of
60.
. . .
(ii) Subject to the consent of the SITA, a member who has
reached his normal retirement date and normal
retirement age of 60 or 65, whichever is applicable,
may remain in service and retire at a date not later
than the last day of the month in which the member
attains the age of 67. . .” (Emphasis added.)

[111] Clause 9.19.1(b)(i) of the SITA Employment Conditions simply specifies that
the normal retirement age is 60 years of age but a member’s last day at work is not
necessarily the day on which the member concerned turns 60. It provides that the
member’s last day is the last day of the month in which he or she turns 60. This,
therefore, means that, unless an employee’s 60 th birthday is on the last day of the
month, the employee’s last day at work will not be his or hers 60th birthday.

[112] Clause 9.19.1(b)(ii) provides for an exception to the general rule in
clause 9.19.1(b)(i) that a member retires on the last day of the month in which he or
she turns 60 years of age. The exception for which clause 9.19.1(b)(ii) provides is
that, with the consent of the respondent, despite a member having reached his or her
retirement age and the last day of the month in which he or she turns 60 years of age,
he or she may remain in the respondent’s service “and retire at a date not later than the
last day of the month in which the member attains the age of 67 . . . . ”. What
clause 9.19.1(b)(ii) means is that, provided there is the employer’s consent, a member
may remain in the employer’s service “and retire not later than the last day of the
month in which the member attains the age of 67”.
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[113] The right that clause 9.19.1(b)(ii) creates is not an employer’s right to retire
an employee at any time between the last day of the month in which the employee
reaches 60 years of age and age 67. The right that the provision creates is that of the
employee. I say this because the provision says “ . . . a member . . . may remain in
service and retire at a date not later than. . .”. The provision does not say: “ . . . the
SITA may . . . ”. That right only vests in the employee once the respondent has
consented to the employee continuing in the respondent’s employment beyond the
retirement age of 60 years. It is the employee’s right to retire any time between the
last day of the month in which he or she turned 60 and age 65. The employee should
obviously have to give notice of his retirement in the same way that the employer
would have to give the employee notice of termination of the contract of employment.

[114] On behalf of the applicants it was contended that each individual applicant
remained in the respondent’s service beyond the last day of the month in which they
turned 60 and that this was with the consent of the respondent. The respondent led the
evidence of only one witness, Mr Moeketsi Hlabanelo. Mr Hlabanelo was the Acting
Head of Department: Human Capital Management at the time of the dismissals of the
individual applicants. At the time of giving evidence Mr Hlabanelo was a Senior
Manager: Operations and Logistics within the Facilities Department.

[115] That it was with the consent of the respondent that the individual applicants
had continued working for the respondent beyond the last day of the months in which
they respectively turned 60 years of age was put to Mr Moeketsi Hlabanelo under
cross-examination. He conceded that it was with the consent of the respondent that
the individual applicants worked beyond the last day of the months in which they
respectively turned 60 and, thus, reached their agreed retirement age.

[116] It is important to refer to the exchange between Mr Hlabanelo and the
applicant’s legal representative during Mr Hlabanelo’s cross -examination. In part it
reads:
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“APPLICANT REPRESENTATIVE: Okay. I do not want you to
digress. It is a very simple question. You see, I see where you and I,
where we have conflict in this discussion, is that you are embedding
yourself in this argument, that it was a mistake to allow these
individuals to continue to work, am I correct?
MR MOEKETSI HLABANELO: Absolutely.
APPLICANT REPRESENTATIVE: Alright. And because you
believe it was a mistake, you seem to have difficult y to agree on a
very simple proposition that, even if it was a mistake, which I am not
conceding, I am saying, even if Her Ladyship accepts it was a
mistake, that they were there with the consent of SITA. No-one
chased them away.
MR MOEKETSI HLABANELO: They were there with the consent of
SITA, by virtue of the fact that line managers who were acting on
behalf of SITA, allowed them to be there.
APPLICANT REPRESENTATIVE: Yes. But those line managers
had a mandate, they were acting on behalf of SITA.
MR MOEKETSI HLABANELO: That is what we are. . .[intervened]
APPLICANT REPRESENTATIVE: Yes, yes, alright. So, basically
then, just to summarise, okay. We have heard your answer and your
qualification, but basically, you and I seem to be in agreement that in
fact yes, obviously they went and they performed their services after
the age of 60 [sixty], with the consent of SITA, under those
circumstances. We agree on that.
MR MOEKETSI HLABANELO: We do.” (Emphasis added.)

[117] Once one accepts, as one is bound to do after Mr Hlabanelo’s concession, that
it was with the respondent’s consent that the individual applicants remained in the
respondent’s employment beyond the last day of the month in which each individual
applicant turned 60, the next question is whether that had any impact or effect on
whether the respondent could dismiss any individual applicant on grounds of age
between the last day of the month in which they turned 60 and the date when they
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reached age 67. The short answer is that, once the individual applicants continued to
work for the respondent beyond the normal retirement age of 60 and did so with the
consent of the respondent, they had a right to work until they turned 67 years of age
unless the respondent dismissed them on any ground recognised in law such as serious
misconduct, incapacity or the employer’s operational requirements.

[118] On behalf of the applicants it was also argued that, in order for the respondent
to dismiss the individual applicants before they reached age 67, it was necessary that
an agreement be reached between the parties on a new retirement age and then the
respondent could dismiss them when they reached such retirement age. As there was
no such agreement in this case, it is not necessary to decide this point.

[119] In my view clause 9.19.1(b)(ii) means that, once the SITA or respondent had
given its consent for the individual applicants to remain in its employ beyond the
retirement age, the individual applicants had a right to work until age 67. The
respondent had no right to dismiss them before they reached age 67. For that reason,
too, the dismissals were automatically unfair because the dismissals were based on
age. Section 187(2)(b) was not available to the respondent to use as a shield.

[120] The applicants also contended that the respondent was obliged to have
observed procedural fairness in dismissing them but failed to do so. This raises the
question whether the statute places an obligation on an employer to observe
procedural fairness in cases of automatically unfair dismissals or where the reason for
dismissal is one prohibited by section 5 of the LRA or is a reason listed in section
187(1) of the LRA. I consider this issue next.

[121] Earlier on I referred to the fact that one of the issues that arose in Waco was
whether an employer who contemplates dismissing on grounds of age an employee
who has worked beyond the normal or agreed retirement age is obliged to follow a fair
procedure. I pointed out earlier that in Waco I held that, in such a case there was no
obligation on the employer to comply with a fair procedure other than giving a
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contractual or statutory notice of termination. I said this on the basis that an employer
could dismiss an employee on the grounds of age even long after the employee had
reached the normal or agreed retirement age and still enjoy the section 187(2)(b)
protection.

[122] On the approach I take in this judgment, as opposed to the one I took in Waco,
I am of the view that, if an employer wants to dismiss on the ground of age an
employee who has continued to work beyond the agreed retirement age, that dismissal
cannot be said to be fair by reason of section 187(2)(b) but can only be said to be fair
if, by reason of age , the employee is no longer able to do his or her work as required.
So, the employer would have to prove this. As far as procedural fairness is concerned,
I say it applies in such a case. This is, of course, not the position I took in Waco. In
Waco I took the view that an employer may dismiss an employee on the ground of age
any time after the employee has reached and gone beyond the agreed retirement age
and the section 187(2)(b) shield or protection would alw ays be available to the
employer. I also held that procedural fairness did not apply in such a case. The basis
for this was that the dismissal could not be substantively unfair because, if it was
based on age as agreed between the employer and employee, there was nothing to
inquire into. That dismissal would have happened as agreed. The time from when the
dismissal could be effected was also agreed.

[123] My view in Waco was that, where the reason for an employee’s dismissal was
that he or she had reached the normal or agreed retirement age, there was nothing on
which the employee needed to be heard. However, I did not need to look that far to
find a reason for that view because the statute has the answer. To make the point I
need to make, it is important to quote sections 185, 187 and 188 of the LRA. Section
185 reads:

“185 Right not to be unfairly dismissed or subjected to unfair
labour practice
Every employee has the right not to be
(a) unfairly dismissed; and
ZONDO CJ
54
(b) subjected to unfair labour practice.”

[124] Section 185 creates two rights for an employee. The first is the right not to be
unfairly dismissed. The second is the right not to be subjected to unfair labour
practice. It is to be noted that in section 185 there is no reference to substantive
fairness and procedural fairness. There is simply a right not to be unfairly dismissed
and a right not to be subjected to an unfair labour practice.

[125] The heading to section 187 reads:

“Automatically unfair dismissals”

whereas the heading to section 188 reads:

“Other unfair dismissals”.

Here is how sections 187 and 188 read:

“187 Automatically unfair dismissals
(1) A dismissal is automatically unfair if the employer, in
dismissing the employee, acts contrary to section 5 or, if the
reason for the dismissal is—
(a) that the employee participated in or supported, or
indicated an intention to participate in or support, a
strike or protest action that complies with the
provisions of Chapter IV;
(b) that the employee refused, or indicated an intention to
refuse, to do any work normally done by an employee
who at the time was taking part in a strike that
complies with the provisions of Chapter IV or was
locked out, unless that work is necessary to prevent
an actual danger to life, personal safety or health;
(c) to compel the employee to accept a demand in respect
of any matter of mutual interest between the
employer and employee;
ZONDO CJ
55
(d) that the employee took action, or indicated an
intention to take action, against the employer by—
(i) exercising any right conferred by this Act; or
(ii) participating in any proceedings in terms of
this Act;
(e) the employee's pregnancy, intended pregnancy, or any
reason related to her pregnancy;
(f) that the employer unfairly discriminated against an
employee, directly or indirectly, on any arbitrary
ground, including, but not limited to race, gender, sex,
ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, political
opinion, culture, language, marital status or family
responsibility;
(g) a transfer, or a reason related to a transfer,
contemplated in section 197 or 197A; or
(h) a contravention of the Protected Disclosures Act,
2000, by the employer, on account of an employee
having made a protected disclosure defined in that
Act.
(2) Despite subsection (1)(f) —
(a) a dismissal may be fair if the reason for dismissal is
based on an inherent requirement of the particular
job;
(b) a dismissal based on age is fair if the employee has
reached the normal or agreed retirement age for
persons employed in that capacity.

188 Other unfair dismissals
(1) A dismissal that is not automatically unfair, is unfair if the
employer fails to prove—
(a) that the reason for dismissal is a fair reason-
(i) related to the employee's conduct or
capacity; or
(ii) based on the employer's operational
requirements; and
ZONDO CJ
56
(b) that the dismissal was effected in accordance with a
fair procedure.
(2) Any person considering whether or not the reason for
dismissal is a fair reason or whether or not the dismissal was
effected in accordance with a fair procedure must take into
account any relevant code of good practice issued in terms of
this Act.” (Emphasis added.)

[126] These headings tell the reader that section 187 relates to automatically unfair
dismissals and section 188 relates to non -automatically unfairly dismissals – in other
words, another category of dismissals.

[127] It will be seen from section 187 that the statute provides reasons that render a
dismissal automatically unfair. It will also be noted under section 187 that there is no
provision to the effect that a failure by the employer to afford an employee an
opportunity to be heard renders a dismissal automatically unfair. Therefore, a
dismissal only becomes automatically unfair on the basis of a substantive reason and
not on the basis of a failure by the employer to follow a fair procedure. That, in my
view, is because an employer is not supposed to dismiss an employee on any of the
grounds listed in section 187(1) except within the four corners of section 187.

[128] If the employer gets the age of the employee wrong or gets the normal
retirement age wrong or wrongly thinks that the employee has agreed to a retirement
age, the employee will challenge that dismissal in the Labour Court. If the employer
fails to show that section 187(2)(a) or (b) applies, the dismissal will be automatically
unfair. However, when we proceed to unfair dismissals other than automatically
unfair dismissals in section 188 we find that, unlike in the case of automatically unfair
dismissals in section 187, the statute provides two reasons which will render a
dismissal unfair. The first one is substantive. The second one is procedural. The
effect of section 188, read with section 187, is that a dismissal cannot be rendered
automatically unfair simply because a fair procedure was not followed by the
employer but a dismissal that is not automatically unfair will be unfair on either a
ZONDO CJ
57
substantive ground only or on a procedural ground only or on both substantive and
procedural grounds. As will have been seen above, section 188 reads:

“188 Other unfair dismissals
(1) A dismissal that is not automatically unfair, is unfair if the
employer fails to prove-
(a) that the reason for dismissal is a fair reason-
(i) related to the employee's conduct or capacity;
or
(ii) based on the employer's operational
requirements; and
(b) that the dismissal was effected in accordance with a
fair procedure.
(2) Any person considering whether or not the reason for
dismissal is a fair reason or whether or not the dismissal was
effected in accordance with a fair procedure must take into
account any relevant code of good practice issued in terms of
this Act.” (Emphasis added.)

[129] The opening part of section 188 expressly excludes an automatically unfair
dismissal when the section places upon the employer the burden to prove that the
dismissal was effected in accordance with a fair procedure. Therefore, it can be said
with confidence that the unfair dismissal regime or dispensation that the LRA created
does not require that an employer proves that an automatically unfair dismissal was
effected in accordance with a fair procedure. That requirement only applies to the
other dismissals dealt with under section 188. In my view, that is the law as it
presently stands. The constitutionality of the LRA’s exclusion of the requirement of a
fair procedure in respect of automatically unfair dismissals was not challenged in the
present case. It is, therefore, not necessary to express a view on its constitutionality.
Therefore, it seems to that rightly or wrongly the LRA does not impose on an
employer the duty to comply with a fair procedure where a dismissal is for a reason
that would ordinarily render the dismissal automatically unfair.

ZONDO CJ
58
Relief
[130] Initially, Solidarity sought retrospective reinstatement for all the individual
applicants if the Labour Court concluded that the dismissals were automatically
unfair. It persisted in this position at the time of launching its application for leave to
appeal in this Court. However, at the hearing Counsel for Solidarity did not persist in
that position and sought, instead, an order for the payment of maximum compensation
to the individual applicants. Quite correctly, the respondent did not argue that this was
a case where, if the Court concluded that the dismissals were automatically unfair, the
individual applicants should not be paid any compensation at all.

[131] In considering whether the individual applicants should be granted maximum
compensation, one of the important factors is that the individual applicants’ dismissals
were not just without a reason but were for a prohibited reason and, therefore, were
automatically unfair.

[132] It is important to also bear in mind how much time each individual could have
worked before he or she reached the compulsory retirement age of 67.

132.1 Mr Strydom reached 60 years of age in May 2015 and his last working
day was 31 December 2017. He could have worked just over four years
before reaching age 67 but was denied that opportunity.
132.2 Mr Enslin reached 60 years of age in November 2016. Although his last
working day as a permanent employee was 31 August 2017,
subsequently he worked for the respondent on a fixed term contract that
ended at the end of February 2018. He could have worked for another
period of over five years but he was denied that opportunity.
132.3 Mr Olivier turned 60 in November 2016 and his last working day was
30 September 2017. He could have worked another six years before he
reached 67 years of age but was denied that opportunity.
ZONDO CJ
59
132.4 Ms van den Berg turned 60 in August 2015. Her last working day was
31 January 2018. She could have worked for another three and a half
years but was denied that opportunity.
132.5 Ms Smith turned 60 in June 2014. Her last working day was
30 September 2017. Since she could have worked until June 2021, she
was deprived of the opportunity of working for more than three and a
half years.
132.6 Ms du Plessis turned 60 in July 2016 and her last working day was 31
December 2018. She died in January 2021. This means that she could
still have worked just over five years before reaching the retirement age
of 67. However, since she passed away in January 2021, she was only
denied an opportunity to work for a period of three years

[133] Furthermore, the individual applicants are not going to be reinstated which
could have had retrospective effect and thus could have meant that the respondent
would have had to pay the individual applicants backpay of a number of months
probably more than two years’ backpay. All that is not being done. In these
circumstances I am of the view that considerations of fairness and equity dictate that
the individual applicants should be awarded maximum compensation. In the case of a
dismissal that has been found to be automatically unfair, that would be 24 months’
remuneration.

Costs
[134] With regard to costs , it needs to be emphasised that a dismissal for a reason
listed in section 187(1) of the LRA is a serious violation of an employee’s right not to
be discriminated against unfairly and the right not to be dismissed for any of the
reasons listed in section 187(1) except where the LRA permits such dismissal. I am of
the view that the requirements of law and fairness dictate, for the same reasons I gave
in the Landman case above, that the respondent should be ordered to pay the
applicants’ costs in all the courts.
ZONDO CJ
60
“

[135] In the circumstances, I would make the following orders:
135.1. In the Landman matter:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The respondent is to pay the applicant s’ costs (including those
consequent upon the employment of two Counsel where two
Counsel were employed).
4. The order of the Labour Appeal Court is set aside and replaced
with the following:
“(a) The appeal is upheld.
(b) The respondent is ordered to pay the applicant s’ costs
(including those consequent upon the employment of two
Counsel where two Counsel were employed).
(c) The order of the Labour Court is set aside and replaced
with the following:
‘(i) The respondent’s dismissal of Mr Landman was
automatically unfair.
(ii) The respondent is ordered to pay Mr Landman
compensation equal to 24 months’ remuneration
calculated at the rate of remuneration applicable to
Mr Landman at the time of his dismissal.
(ii) The respondent is ordered to pay the applicants’
costs (including the costs of two Counsel where
two Counsel were employed).’”

135.2. In the Solidarity matter:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The decision of the Labour Court is set aside and, for it, the
following order is substituted:
ZONDO CJ / VAN ZYL AJ
61
(a) The dismissals of Solidarity’s members involved in this
case were automatically unfair.
(b) The respondent must pay each Solidarity member involved
in this case an amount equal to his or her remuneration for
24 months calculated at the rate of remuneration
applicable to the employee concerned at the time of his or
her dismissal. In the case of the dismissal of the late Ms
du Plessis, the respondent shall pay Ms Lötter in her
capacity as the executrix of the estate of the late Ms du
Plessis an amount equal to 24 months’ remuneration that
was applicable to Ms du Plessis at the time of her
dismissal.
(c) The respondent shall pay Solidarity’s costs including those
consequent upon the employment of two Counsel where
two Counsel were employed.”
4. The respondent shall pay Solidarity’s costs in this Court ,
including those consequent upon the employment of two Counsel ,
as well as Solidarity’s costs in applying for leave to appeal to the
Labour Appeal Court.



VAN ZYL AJ:


[136] I have had the advantage of reading the judgment s of Zondo CJ (first
judgment) and Rogers J (third judgment) . I agree that the issue raised in the two
matters engages this Court’s jurisdiction and that the applicants must be granted leave
to appeal the judgment of the Labour Appeal Court in Landman19 and that of the
Labour Court in Solidarity.20

19 Motor Industry Staff Association and Another v Great South Autobody CC t/a Great South Panel Beaters
[2022] ZALAC 103; (2022) 43 ILJ 2326 (LAC) (Landman).
20 Solidarity o n behalf of Strydom v State Technology Agency SOC Ltd [2022] ZALCJHB 95; (2022) 43 ILJ
1881 (LC) (Solidarity).
VAN ZYL AJ
62

[137] The issue raised for determination in both Landman and Solidarity is the
effect on the contractual relationship between an employer and employee when the
employee, who has elected not to retire upon reaching the normal or agreed retirement
age, is permitted by the employer to work beyond the determined retirement age. Put
differently, the question raised on the facts of the two matters is what, in the absence
of the parties having reached agreement with regard thereto, is the result of a failure
by the employer to terminate the employee’s employment when the latter has reached
retirement age. Does the employer without more lose the protection of
section 187(2)(b) of the LRA 21 as suggested in the first judgment, or may the
employer terminate the employment relationship at any time thereafter as suggested in
the third judgment?

21 Above n 1.
VAN ZYL AJ
63

[138] I agree with the finding in the first judgment that the decision of the
Labour Court in Waco22 and that of the Labour Appeal Court in Landman is not
correct to the extent that it held without qualification that the employer may terminate
the employment relationship at any time after the employee has reached retirement
age. As I intend showing, the suggestion is inconsistent with accepted contractual
principles. However, I find myself in disagreement with the first judgment in three
respects: firstly, the reasoning employed in arriving at the aforementioned conclusion;
secondly, and more fundamentally, I do not agree that the re is an obligation on the
employer to terminate the employment relationship when the employee has reached
the determined or agreed retirement age; and thirdly, I find on the facts of the two
matters before us that the appeals must be dismissed. Insofar as the third judgment is
concerned, I disagree with the reasoning as being inconsistent with the nature of the
right which flows from the manner in which the Legislature has chosen to deal with
the termination by an employer of the employment relationship upon the employee
having reached the determined retirement age.

[139] The nature of the relationship between an employer and employee is
contractual.23 As is the case with any other contractual relationship, the employment
contract may be terminated by agreement .24 This may be achieved by an express term
in the contract, or tacitly by an unexpressed provision of the contract “which derives
from the common intention of the parties as inferred by the Court from the express
terms of the contract and the surrounding circumstances”. 25 The retirement clauses in
both Landman and Solidarity provides for the termination of the contractual
relationship between the employer and the employee by agreement. In Landman the
employee’s contract of employment provided that his “retirement age will be 60 years

22 Above n 2.
23 Van Jaarsveld “Labour Law” in LAWSA 3 ed (2017) vol 24(1) at para 98 and Grogan Workplace Law 12 ed
(Juta & Co Ltd, Cape Town 2017) at 31.
24 Van Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration 1987 (4) SA 569 (A) at 588I -J
(Van Streepen).
25 Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506 (A) at 531.
VAN ZYL AJ
64
of age”. It must be emphasised that in Landman the parties asked the Labour Court to
determine the issues raised on the basis of a stated case. To this extent it was an
agreed fact that the retirement age was 60 years of age, and the fact that the retirement
age was 65 in a collective agreement, was as a consequence of no relevance. In
Solidarity the employee’s conditions of service read with the rules of the relevant
pension fund in turn provided that their retirement age is 60 years, but that an
employee may continue to render service with the consent of the employer not
extending beyond the age of 67. The rules of the relevant pension fund provided that
the employer had to agree in writing to the employee remaining in service, and that
the employer “ shall retire from [S]ervice on such later date as he agrees with his
[e]mployer”.

[140] The effect of the retirement clauses in both Landman and Solidarity is that the
contract of employment terminates by the effluxion of time upon the employee
reaching the normal or agreed retirement age. Not unlike any other form of contract,
if the parties agree upon a definite time for the expiration of the employment contract,
the contract terminates automatically. 26 However, it is important to note that this
consensual form of termination of the contract must be distinguished from the
unilateral exercise by one party of the right to terminate the agreement. Such a right
may accrue by operation of law, most commonly on the ground that the other party to
the contract is guilty of material misrepresentation or that he or she wrongfully
repudiated or breached a material term of the contract. As emphasised in
Van Streepen,27 these are two different forms of terminating a contract that denote two
very different juristic concepts:

“In the law of contract ‘cancellation’ is a well -known term which covers both
cancellation by agreement between the parties (or consensual cancellation, to use the
phrase adopted by counsel in argument) and cancellation by one party on the ground
that the other party has wrongfully repudiated or breached a material term of the
contract (see Christie The Law of Contract in South Africa at 431, 520 and the cases

26 Grogan above n 23 at 36.
27 Van Streepen above n 24 at 588H-J.
VAN ZYL AJ
65
there cited; Prof Louise Tager in (1976) 92 SALJ at 430 -1). These two forms of
cancellation denote very different juristic concepts. The first -mentioned form,
consensual cancellation, is a contract whereby another contract is terminated. The
second-mentioned form, cancellation on repudiation or breach, involves the unilateral
exercise by one party of the right to rescind the contract, this right having accrued to
him by reason of the other party’s repudiation or material breach.”28

[141] It is in the context of the contractual nature of the relationship between the
employer and employee and the principles applicable thereto that section 187(2)(b) of
the LRA must be given meaning. The issue raised is es sentially one of interpretation,
and its focus is, from an employer’s perspective, on the manner in which the
employment relationship terminates when the employee has reached the normal or
agreed retirement age. For convenience of reference, I quote the relevant portions of
section 187:

“(1) A dismissal is automatically unfair if the employer, in dismissing the
employee, acts contrary to section 5 or, if the reason for the dismissal is—
. . .
(f) that the employer unfairly discriminated against an employee,
directly or indirectly, on any arbitrary ground, including, but not
limited to race, gender, sex, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, political
opinion, culture, language, marital status or family responsibility.
(2) Despite subsection (1)(f)—
. . .
(b) a dismissal based on age is fair if the employee has reached the
normal or agreed retirement age for persons employed in that
capacity.”

[142] The L abour Appeal Court found that section 187(2)( b) affords an employer
the right to terminate the employment relationship on the basis of age when the
employee has reached retirement age, and that the focus of the section is not on

28 Id.
VAN ZYL AJ
66
restricting the exercise of that right to a particular point in time, namely when the
employer had reached the normal or agreed retirement age, but rather that the
employee has reached or passed that age before the right may be exercised. The
Labour Appeal Court reasoned as follows:

“Section 187(2)(b) does not prescribe a time frame within which the dismissal should
take place, provided it is after the employer has reached his or her agreed or normal
retirement date. Properly construed, section 187(2)(b) affords an employer the right
to fairly dismiss an employee based on age at any time after the employee has
reached his or her agreed or normal retirement age. This right accrues to both the
employee and the employer immediately after the employee’s retirement date and can
be exercised at any time after this date. The focus is not so much on when the
employee reached his or her retirement date, but rather that the employee has
already reached or passed the normal or agreed retirement age .”29 (Emphasis
added.)

[143] With the qualification, for reasons which I will give shortly, that the exercise
of the right must be within a reasonable time after the employee has reached
retirement age, and not “at any time [there]after” as the Labour Appeal Court found, I
agree with this interpretation. It is consistent with the accepted approach to statutory
interpretation. What the proper approach to the interpretation of a statute or any other
document is, was dealt with by the Supreme Court of Appeal in Endumeni30 and
received the approval of th is Court.31 Aptly described by this Court as a “unitary
exercise” in University of Johannesburg,32 it is the process of attributing meaning to
the words used in the legislation by giving consideration to the—


29 Landman above n 19 at para 15.
30 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA)
(Endumeni) at para 18.
31 Cool Ideas 1186 CC v Hubbard [2014] ZACC 16; 2014 (4) SA 474 (CC) ; 2014 (8) BCLR 869 (CC) at para
28. See also Municipal Employees Pension Fund v Natal Joint Pension Fund [2017] ZACC 43; 2018 (2) BCLR
157 (2018) 39 ILJ 311 (CC).
32 University of Johannesburg v Auckland Park Theological Seminary [2021] ZACC 13; 2021 (6) SA 1 (CC) ;
2021 (8) BCLR 807 (CC) (University of Johannesburg) at paras 65–7.
VAN ZYL AJ
67
“nature of the document, . . . the language used in the light of the ordinary rules of
grammar and syntax; the context in which the provision appears, the apparent purpose
to which it is directed and the material known to those responsible for its production.
Where more than one meaning is possible each possibility must be weighed in the
light of all these factors. The process is objective, not subjective. A sensible
meaning is to be preferred to one that leads to insensible or unbusinesslike results or
undermine the apparent purpose of the document . . . . The inevitable point of
departure is the language of the provision itself, read in context and having regard to
the purpose of the provision and the background to the preparation and production of
the document.”33

[144] This approach accords with the second of the two approaches mentioned by
Schreiner JA in Jaga,34 namely that from the outset one considers the context and the
language together, and not the one after the other. Of further importance, particularly
in the context of the present matter, is the point emphasised by Schreiner JA in Jaga,
that—

“the context as here used is not limited to the language of the rest of the statute
regarded as throwing light of a dictionary kind on the part to be interpreted. Often of
more importance is the [subject] matter of the statute, its apparent scope and purpose,
and, within limits, its background.”35

[145] The interpretation given to section 187(2)( b) by the L abour Appeal Court in
Landman is consistent with the ordinary grammatical meaning of the words used
therein. The verb “reached” simply means that the employee must have attained the
required retirement age. It does not carry the implication of not having gone beyond
that age. The section simply provides that for the dismissal to be fair, the employee
must have attained ( “reached”) retirement age. It does not confine the fairness of the
dismissal to the date when the employee “reaches” retirement age.


33 Endumeni above n 30 at para 18.
34 Jaga v Dönges NO; Bhana v Dönges NO 1950 (4) SA 653 (A) (Jaga) at 662G–663A.
35 Id at 662H.
VAN ZYL AJ
68
[146] The context in which section 187(2)(b) must be interpreted is provided by two
things, namely the fact that section 187(2)( b) forms part of C hapter VIII of the LRA
which deals with “Unfair Dismissal and Unfair Labour Practice”, and that it provides
a defence to what would otherwise have constituted an automatic ally unfair dismissal
as envisaged in section 187(1)(f). Subsection (1)(f) provides that—

“(1) A dismissal is automatically unfair if . . . the reason for the dismissal is—
. . .
(f) that the employer unfairly discriminated against an employee,
directly or indirectly, on any arbitrary ground, including, but not
limited to race, gender, sex, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, political
opinion, culture, language, marital status or family responsibility.”

[147] The subject matter of section 187(1)(f) read with subsection (2)(b) is the right
of the individual to equal treatment. Subsection (1)(f) gives effect to the
constitutionally entrenched right in section 9 of the Bill of Rights. 36 Subsection (2)(b)
on the other hand places a limitation on that right as envisaged in section 36 of the Bill
of Rights.37

36 Section 9 is headed “Equality” and reads:
“(1) Everyone is equal before the law and has the right to equal protection and benefit of
the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative and other measures designed to
protect or advance persons, or categories of persons, disadvantaged by unfair
discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one
or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or
social origin, colour, sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or
more grounds in terms of subsection (3). National legislation must be enacted to
prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless
it is established that the discrimination is fair.”
37 Section 36 is headed “Limitation of rights” and reads as follows:
“(1) The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an open
VAN ZYL AJ
69

[148] Neither the judgment in Waco nor that of the L abour Appeal Court in
Landman provides an adequate explanation for finding that the employment contract
does not automatically terminate when the employee has reached the normal or agreed
retirement age. In Waco the reasoning seems to proceed from the premise that
because the employment contract expires by effluxion of time, and there is
consequently no dismissal when an employee’s contract of employment terminates by
virtue of having attained the normal or agreed retirement age, a “dismissal” in section
187(2)(b) can only have been intended to apply to those instances where the
employee’s services were subsequently terminated after they were permitted to work
beyond the normal or agreed retirement age. In Landman the Labour Appeal Court on
the other hand found that what the LRA contemplates is that where the employee
continues to work uninterruptedly after attaining retirement age, the employment
relationship and the contract continue: “[in] other words, for purposes of a dismissal in
terms of section 187(2)( b), the employment contract does not terminate by the
effluxion of time when the employe e reaches his or her retirement age but is deemed
to continue.”38 It is not clear why the employment contract is said to be “deemed” to
continue.

[149] On a reading of section 187(2)( b), the reason why the employment
relationship does not terminate immediately when the employee has reached
retirement age, and that the employer’s right to terminate the employment relationship
may therefore continue, lies in the fact that the Legislature considers the termination

and democratic society based on human dignity, equality and freedom, taking into
account all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no
law may limit any right entrenched in the Bill of Rights.”
38 Landman above n 19 at para 17.
VAN ZYL AJ
70
of the employee’s employment by virtue of the employee having attained the normal
or agreed retirement age to constitute a dismissal. Section 187(2)( b) in other words
brings about a statutory change to the legal consequences that would otherwise
normally flow from an employee reaching retirement age where the agreed retirement
age is seen as an event, the occurrence of which will automatical ly bring the contract
to an end. 39 Section 187(2)(b) alters the legal position by providing for a departure
from the automatic termination of the employment relationship when an employee
reaches the contractually agreed retirement age. It does that by considering the
termination of the employment contract by reason of the employee having reached
retirement age to be a dismissal as envisaged in Chapter VIII of the LRA, as opposed
to it being the automatic consequence of what is otherwise nothing more than an
express term of the contract between the parties that determines the maximum
duration of the employment relationship.

[150] Because it is regarded as a dismissal by the Legislature, section 187(2)( b)
must be read with section 186(1)( a) of the LRA. A dismissal in terms of the latter
section is the termination of the employee’s contract with or without notice. A
dismissal is accordingly a positive, unilateral act by the employer taken with the
intention of terminating the employment relationship between the parties to a contract
of employment. Read in the context of Chapter VIII as a whole, the effect of
section 187(2)(b) is therefore that, notwithstanding what the employer and employee
may mutually have agreed to in their contract of employment, the termination of the
employment contract by reason of the employee having reached the normal or agreed
retirement age is , from the employer’s perspective, a dismissal that requires the
employer to make a decision to terminate the employment relationship based on the
employee’s age. That being so, it must logically follow that unless an employer takes
a decision to retire the employee, the employment contract does not automatically end.

[151] The legal effect of section 187(2)( b), on the interpretation given to it in this
judgment, is that the employer acquires the right to fairly terminate the employment

39 Grogan above n 23 at 43-5.
VAN ZYL AJ
71
relationship when the employee has reached the normal or agreed retirement age. It is
a right that accrues to the employer by operation of law. Accordingly, a t the point in
time when the employee reaches retirement age, the employer is faced with a choice,
namely, to elect either to terminate the employment contract as envisaged in
section 187(2)(b), or to allow the employment relationship to continue . As in any
other contractual relationship where a state of affairs comes into existence in which
one party to a binding contract becomes entitled, either under the terms of the
contract, or by the general application of the law, to exercise a right, and has to decide
whether or not to do so, the principle of election finds application. The decision of the
party concerned, being a matter of a choice between two alternatives inconsistent with
one another, in law constitutes an election.

[152] As explained in Segal,40 the principle of election postulates a situation where
a contracting party—

“has a choice of two courses. He can either elect to take advantage of the event or he
can elect not to do so. He is entitled to a reasonable time in which to make up his
mind, but once he has made his election he is bound by that election and cannot
afterwards change his mind.”41

[153] In Potgieter,42 Centlivres JA quoted with approval the following passage from
Pollock:43

“The contract must be rescinded within a reasonable time, that is, before the lapse of
a time after the true state of things is known, so long that under the circumstances of

40 Segal v Mazzur 1920 CPD 635 (Segal).
41 Id at 644–5. This passage was referred to with approval by the Appel late Court in Du Plessis NNO v Rolfes
Ltd 1997 (2) SA 354 (A) at 364G–365A. See also Septoo v City of Johannesburg [2017] ZALAC 85; (2018) 39
ILJ 580 (LAC) at para 19.
42 Potgieter v Van der Merwe 1949 (1) SA 361 (AD) at 372 (Potgieter).
43 Pollock Principles of Contract:A Treatise on the General Principles Concerning the Validity of Agreements in
the Law of England 8 ed (Stevens and Sons, London 1911) at 629.
VAN ZYL AJ
72
the particular case the other party may fairly infer that the right of [rescission] is
waived.”44

[154] What is important to emphasise from the quoted passages is the fact that the
election must be made within a reasonable time. The failure to exercise the right in
section 182(2)(b) within a reasonable time is evidence and may be conclusive
evidence of an election not to terminate the employment contract. 45 That the election
must be made within a reasonable time is an aspect which the L abour Appeal Court in
Landman seems to have overlooked. The reason for the Court not to have dealt
therewith lies in all likelihood in the fact that it failed to consider the legal
consequences arising from the nature of the right that accrues to the employer in terms
of section 187(2)( b), with the result that it dealt with the issue purely as one of a
waiver as opposed to a situation where the employer is entitled to an election between
two alternative rights which are inconsistent with each other. Although election
involves the waiver of a right, and while election and waiver are said to be species of
the same general legal concept that involves the abandonment of a right and may have
the same requisites and may produce the same results ,46 they are legal acts which arise
in different situations . T hey have their own nuances, and the distinction is best
maintained.

[155] The right to terminate the employment contract by reason of age is conferred
on the employer by section 187(2)( b). It is therefore a right conferred by law and it
matters not that it is in a statutory context, and that it impacts on the contractual
relationship between parties. That being so, the decision to exercise that right by
terminating the employment relationship rests with the employer. 47 It does not require

44 Id.
45 Mahabeer v Sharma NO 1985 (3) SA 729 (A) (Mahabeer) at 736D-I and Cook v Morrison [2019] ZASCA 8;
2019 (5) SA 51 (SCA) at para 30.
46 The principle is sometimes conveniently referred to as the principle of waiver by election. See Delta
Petroleum (Carib bean) Ltd v British Virgin Islands Electing Corporation [2020] UKPC 23 at para 18 (Delta
Petroleum).
47 As the issue was not raised and therefore not addressed, I leave the question open whether the employer may
have to comply with the employee’s right to a procedurally fair dismissal in terms of section 188(1)(b) of the
LRA when making the decision.
VAN ZYL AJ
73
the agreement of the employee concerned and is consequently a unilateral act. In this
context, the choice with which the employer is presented by section 187(2)(b) when
an employee reaches the normal or agreed retirement age is best described as an
election as opposed to the waiver of a right conferred by operation of law .48 Waiver
by election, or simply “election”, applies in the narrow situation in which there is a
choice between two rights or powers:

“When one party to a contract commits a breach of a material term, the other party is
faced with an election. He may cancel the contract or he may insist upon due
performance by the party in breach. The remedies available to the innocent party are
inconsistent. The choice of one necessarily excludes the other, or, as it is said, he
cannot both approbate and reprobate.”49

[156] The election is made unilaterally and ar ises where, in a contractual context
such as in the present matters, there is a choice as to whether or not the contract “lives
or dies”.50 Although election typically arises when the parties to a contract have to
know where they stand, it is a concept which may find application in more than one
context. The source of the right or power is therefore not relevant and the principle of
election is not confined to remedies arising in a contractual context as the third
judgment seems to suggest.51

[157] The result of an election is that once the election has been made, it is final and
binding, and if the party having the election chose to terminate the contract, it can
only be revived by an agreement that requires a fresh meeting and concurrence of the

48 The b ilateral nature of waiver in a purely contractual context is not without controversy and I express no
views with regard thereto . See Christie and Bradfield Christie’s The Law of Contract in South Africa 8 ed
(LexisNexis, Durban 2022) at 533 and Kerr The Principles of the Law of Contract 6 ed (LexisNexis, Durban
2002) at 469-93.
49 Bekazaku Properties (Pty) Ltd v Pam Golding Properties (Pty) Ltd 1996 (2) SA 537 (C) ( Bekazaku) at 542E.
See also Christie and Bradfield id at 563-4.
50 Kosmar Villa Holidays plc v Trustees of Syndicate 1243 [2008] EWCA Civ 147 at para 66.
51 Delta Petroleum above n 46 at para 19.
VAN ZYL AJ
74
minds of the parties to restore the status quo ante (situation that existed before) .52
Further, and in a contractual context, an election not to terminate the contract means
two things: Firstly, not unlike any other contractual relationship where a party has
waived a right in law to terminate the contractual relationship, the employment
contract as it existed when the right to end that relationship accrued continues to
exist.53 Secondly, the right to terminate the relationship for the reason that forms the
basis for the existence of the right is lost. 54 In the context of section 187(2)( b), this
means that the employment relationship of the parties continues to be regulated by the
same contract and that the employer has lost the right to terminate the contract on the
basis of the employee having reached the normal or agreed retirement age.

[158] This result does however not mean that the employer can no longer terminate
the employment relationship after having followed a fair procedure for reasons
relating to the employee’s capacity, the employee’s conduct, or if operational
requirements necessitate , the termination of the contract. An employment contract
that does not specify a date of termination, is otherwise always terminable on any of
the grounds accepted in law. Nevertheless, it is always open to the employer and
employee to agree on what the result would be in the event of the employer failing to
terminate the employment contract when the employee reached the determined
retirement age. Subject to any legislative prescription, the parties to an employment
contract are, as with any other contract, free to regulate their respective rights and
duties in the contract. It may accordingly be open to the parties to agree on a new
retirement age or to limit the duration of the employee’s employment for a specified
period.

[159] The implementation of the prohibition against discrimination on the basis of
age required the Legislature to make a choice between competing interests. It is a

52 Desai v Mohamed 1976 (2) SA 209 (N) at 713 . See also United Bioscope Cafes Ltd v Mosely Buildings Ltd
1924 AD 60 at 67 ; Thomas v Henry 1985 (3) SA 889 (A) at 896E ; Bekazaku above n 49 at 542E -J; and
Sewpersadh v Dookie [2009] ZASCA 78; 2009 (6) SA 611 (SCA) at para 16.
53 Christie and Bradfield Christie’s The Law of Contract in South Africa 6 ed (LexisNexis, Durban 2011) at 457.
54 Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd (2) 2005 (6) SA 23 (C) at para 32.
VAN ZYL AJ
75
choice between the need to expand the labour market by increasing the participation
of younger workers and protecting the rights of older workers who are possessed of
the physical and mental abilities to continue to satisfactorily discharge their functions.
The interpretation given to section 187(2)(b) in this judgment and the legal
consequences that flow from the nature of the employer’s right to terminate the
employment relationship are, in my view, consistent with the Legislature having
chosen to find the middle ground between the automatic termination of an employee’s
employment by reason of attaining a retirement age on the one hand, and on the other,
the continued employment of those employees who, despite their age, are possessed of
the necessary skills and knowledge and the physical and mental ability to satisfactorily
continue to perform their contractual duties and remain active in the labour market.
The benefit of retaining the services of the older employees is gained by
section 187(2)(b) allowing the employment relationship to continue for a reasonable
time period. This affords the employer the time and opportunity to give
considerations to, and decide whether or not to continue that relationship, as opposed
to its automatic termination upon the employee having reached the agreed or normal
retirement age that would otherwise be the position, or by placing an obligation on the
employer to immediately terminate the employment relationship as suggested in the
first judgment.

[160] This interpretation of section 187(2)(b) in my view better serves to promote
the extension of the working life of active older employees without unduly restricting
the entry of younger persons to the labour market. It provides the employer with an
opportunity to consider retaining the services of an employee who has reached
retirement age and to reach agreement with the employee with regard to the terms of
their continued employment. It further prevents the undue delay of the decision with
regard to the tenure of employment of an employee who has reached retirement age by
requiring the employer to exercise the accrued right within a reasonable time. It
serves to promote fairness to both the employer and the employee. This is consistent
VAN ZYL AJ
76
with the provisions of the Older Persons Act 55 and its objective of giving effect to and
protecting the right of older persons to equality as entrenched in section 9 of the
Constitution.56 The preamble to the Older Persons Act proclaims, among others, the
necessity to empower older persons “to continue to live meaningfully and
constructively in a society that recognises them as important sources of knowledge,
wisdom and expertise”. The general principles set out in section 5 of the
Older Persons Act, importantly, are said to “guide the implementation of all
legislation applicable to older persons”. 57 The general principles referred to include
the following—

“(2) All proceedings, actions or decisions in a matter concerning an older person
must—
(a) respect, protect, promote and fulfil the older person’s rights, the best
interests of the older person and the rights and principles set out in
this Act, subject to any lawful limitation;
(b) respect the older person’s inherent dignity;
(c) treat the older person fairly and equitably; and
(d) protect the older person from unfair discrimination on any ground,
including on the grounds of the health status or disability of the older
person.
(3) In any matter concerning an older person—
(a) an approach which is conducive to conciliation and problem-solving
should be followed and a confrontational approach should be
avoided; and
(b) a delay in any action or decision to be taken must be avoided as far as
possible.” (Emphasis in original).

[161] The finding in Waco and Landman that it is open to the employer to terminate
the employment contract at any time after the employee has reached retirement age is
inconsistent with the ordinary principles of contract that find application to the

55 13 of 2006.
56 An “older person” is defined in section 1 as “a person who, in the case of a male, is 65 years of age or older
and, in the case of a female, is 60 years of age or older.”
57 Subsection (1)(a) of section 5.
VAN ZYL AJ
77
exercise of two alternative and inconsistent courses of action. The right the employer
acquires when the employee has reached retirement age is the second form of right
referred to in Van Streepen.58 It arises by operation of law, that is, by reason of the
fact that section 187(2)(b) affords the employer the right to terminate the employment
relationship when the employee has reached retirement age. That right is exercised in
the context of the contractual nature of the relationship between the employer and
employee. The LRA does not serve to alter the contractual nature of the relationship
between the employer and employee or to exclude the application of contractual
principles. What it does is simply to regulate the relationship between the employer
and employee. To that extent it may intrude on the employment relationship with
regard to the terms which govern that relationship and its duration. 59 It may
accordingly override what the parties have otherwise consensually agreed to with the
aim of giving effect to the right to fair labour practices and other entrenched rights in
the Constitution. The findings in Waco and Landman further renders the position of
the employee after reaching retirement age uncertain. This is inconsistent with the
notion of fairness and the aim in section 5(3)(b) of the Older Persons Act to avoid a
delay in any action or decision affecting older persons.

[162] The interpretation given to section 187(2)(b) in the first and third judgments is
with respect inconsistent, not only with the fact that the Legislature has chosen to
regard the termination of the employment relationship based on age as a dismissal, but
also with the nature of the right that accrues to the employer when the employee has
reached retirement age and the contractual principles that find application thereto.
That the contractually agreed retirement age gives rise to an obligation on the part of
the employer to see to it that the employee is retired upon reaching the agreed age, as
suggested in the first judgment, is premised on the contractual nature of the
relationship between the employer and employee. As stated, the Legislature has
chosen to intrude on that relationship by regarding the termination of the employment
relationship as a dismissal. A dismissal does not contemplate a consensual

58 Van Streepen above n 24 at 588G-J.
59 National Automobile & Allied Workers Union v Borg Warner (1994) 15 ILJ 509 (A) at 515G-J.
VAN ZYL AJ
78
termination of employment. Further, the suggested interpretation effectively provides
for something no different from what would otherwise have been the ordinary
consequence of a time clause in an agreement where the employment relationship is
immediately terminated upon the happening of the agreed event. If that was the
intention, the Legislature could have said so.

[163] Further, instead of serving to protect older, vulnerable employees at the point
of retirement, the interpretation of section 187(2)(b) proposed in the first judgment is
more likely to result in the termination of the services of an employee who has
reached retirement age without any consideration of whether the person’s skills and
knowledge may continue to be utilised, and whether the employee has the ability to
continue to satisfactorily perform their contractual duties. At risk of missing the cut
off date and a finding of having discriminated against retiring employees, employers
will, generally speaking, now be on their guard, and will likely balk at the suggestion
that they must seek to negotiate a new fixed term contract or retirement age should
they wish to retain the services of a retiring employee for even a single day beyond the
date of retirement.

[164] Further, the suggestion in the first judgment that the failure of the employer to
retire the employee on the agreed retirement age, even by a single day, must render it
an automatically unfair dismissal without any enquiry into the reasonableness of the
delay, is in my view also inconsistent with the basic tenets of fairness. As stated by
this Court in NEHAWU,60 fairness is not confined to workers only. In support of this
statement this Court quoted with approval the following passage from National Union
of Metal Workers of South Africa v Vetsak Co-Operative Ltd:61

“Fairness comprehends that regard must be had not only to the position and interests
of the worker, but also those of the employer, in order to make a balanced and
equitable assessment.”62

60 NEHAWU above n 6 at para 38.
61 National Union of Metal Workers of South Africa v Vetsak Co-operative Ltd 1996 (4) SA 577 (A).
62 Id at 589C-D. See also 593E-H.
VAN ZYL AJ
79

[165] I also respectfully disagree with the first judgment that an interpretation of
section 187(2)(b) that leaves room for an employer to terminate an employee’s
employment on a date later than the day on which the employee reaches retirement
age, is open to abuse by the employer. As the Labour Appeal Court in Landman
correctly pointed out, it will be impermissible for an employer to invoke the
provisions of section 187(2)(b) where the real reason for the dismissal is based on
something other than age. When placed in dispute, what the real reason for a
dismissal was in any given case will always be a factual question determinable on the
facts of the matter. It is an issue that may arise in a variety of contexts under the LRA
and not only in relation to the dismissal of an employee who has worked beyond his or
her agreed or normal retirement age.

[166] The question is then whether in the present two matters the employers elected
not to exercise the right to terminate the employees’ contracts of employment when
they had reached retirement age.63 Common to both waiver and election is that it is a
matter of the intention of the party said to have made the election or waived the right
in question. “[W]hether it is the waiver of a right or a remedy, a privilege or power,
an interest or benefit, and whether in a unilateral or bilateral form, the starting point
invariably is the will of the party said to have waived.” 64 The intention is determined
objectively, that is, it is adjudged by its outward manifestation in the form of words,
spoken or written, or in the form of conduct or a combination of words and conduct. 65
This means that mental reservations that have not been communicated are of no legal
consequence, and the outward manifestations of the intention of the party faced with
the choice between two alternative and inconsistent courses of action are adjudged

63 The issue of estoppel did not arise in either the Landman or the Solidarity matter.
64 Nienaber JA in Road Accident Fund v Mothupi [2000] ZASCA 27; 2000 (4) SA 38 (SCA) (Mothupi) at
para 15.
65 Id and ABSA Bank Ltd v The Master NNO 1998 (4) SA 15 (N) at 28G-J.
VAN ZYL AJ
80
from the perspective of a reasonable person in the position of the other party
concerned.66

[167] Being a matter of intention, election or waiver can only occur when the party
on whose conduct reliance is placed had knowledge of the legal right which they are
said to have elected to waive, or the right of election which they are said to have
enjoyed, and of the facts under which, or from which, the right arose. 67 In the case of
an election, it means that the person making the election must similarly have
knowledge of both the facts giving rise to the election, and of the right of election
itself.68 The required knowledge as an ingredient of the required intention must
necessarily also include knowledge of the existence of a choice between what are
alternative and inconsistent courses of action.

[168] The burden of proof is on the party who alleges that an election has been
made, or that a right has been waived. Election or waiver is not assumed. It must
consequently be pertinently raised, and being a factual matter, it must be supported by
facts, which must be pleaded. By reason of the fact that no -one is presumed to waive
their rights, clear proof is required of an intention to do so. 69 In Laws v Rutherford70
the position was stated as follows:


66 Mothupi above n 64 at para 1 6. See also Coppermoon Trading 13 (Pty) Ltd v Government , Eastern Cape
Province 2020 (3) SA 391 (ECB) at paras 24-5; Multilateral Motor Vehicle Accidents Fund v Meyerowitz 1995
(1) SA 23 (C) at 27D-E; Botha (now Griessel) v Finanscredit (Pty) Ltd 1989 (3) SA 773 (A) at 792B-E; Palmer
v Poulter 1983 (4) SA 11 (T) at 21A; Traub v Barclays National Bank Ltd ; Kalk v Barclays National Bank Ltd
1983 (3) SA 619 (A) at 634H-635D; and Mutual Life Insurance Co of New York v Ingle 1910 TS 540 at 550.
67 Ex parte Sussens 1941 TPD 15 at 20; Mothupi above n 64 at para 17; and Borstlap v Spa ngenberg 1974 (3)
SA 695 (A) at 704G-H. As stated by Steyn CJ in Hepner v Roodepoort-Maraisburg Town Council 1962 (4) SA
772 (A) at 778H-9A:
“In the ordinary case of waiver, the facta probanda [(material facts)] would be full knowledge
of the rights in question and express waiver or waiver by plainly inconsistent conduct, i.e.
knowledge of a particular kind and surrender of the right in a particular manner. ”
68 See Feinstein v Niggli 1981 (2) SA 684 (A) at 698A - 9B and Pretorius v Greyling 1947 (1) SA 171 (W)
at 177.
69 Ellis v Laubscher 1956 (4) SA 692 (A) at 702 E.
70 Laws v Rutherford 1924 AD 261 at 263. See also Montesse Township & Investments Corporation v Gouws
NO 1965 (4) SA 373 (A) at 381B; Borstlap v Spangenberg above n 48 at 704G-H; Feinstein above n 6 at 698H,
and Mothupi above n 64 at para 19.
VAN ZYL AJ
81
“The onus is strictly on the appellant. He must show that the respondent, with full
knowledge of her right, decided to abandon it, whether expressly or by conduct
plainly inconsistent with an intention to enforce it. 71

Further, in Mothupi, the Court held that “t he conduct from which waiver is to be
inferred, must be unequivocal, ‘that is to say, consistent with no other hypotheses.”72

[169] Making an election accordingly requires an outward representation or some
conduct that unequivocally indicates, when interpreted objectively, that the party
concerned has made a knowing and irrevocable election.

[170] In Landman, the employee pertinently relied on a waiver by the employer of
its right to terminate the employment contract by reason of the employee having
reached the agreed retirement age. In Landman, and for that matter also in Solidarity,
conduct from which an intention to elect to waive the right in section 187(2)(b) to
terminate the employment relationship is to be inferred, can on the facts only consist
of the failure of the respective employers to exercise the right within a reasonable
time. As stated in the passage quoted earlier from the judgment in Segal,73 a party
who has acquired the right to terminate a contract and is left with the choice whether
or not to do so, is entitled to a reasonable time in which to make that choice.
Although each case and the meaning of the particular conduct relied upon depends on
the particular facts, in an instance such as the present where the right entitles the party
concerned to either terminate the employment relationship or continue with it,
certainty requires that the right must be exercised within a reasonable time.

[171] In the absence of anything indicative of a contrary intention, a failure to do so
provides strong prima facie evidence (evidence based on first sight) which may justify
the inference that the employer had elected not to terminate the contract. In

71 Laws v Rutherford 1924 AD 261 at 263.
72 Mothupi above n 64 at para 19.
73 See Segal above n 40 at 644-5 and [152] of this judgment.
VAN ZYL AJ
82
Mahabeer74 the Appellate Division dealt as follows with the correct approach to a
failure of a party to a contract to exercise the right to cancel the agreement within a
reasonable time:

“It is often said (usually on the authority of Voet Commentarius Ad Pandectus 18.3.2)
that the right to cancel an agreement must be exercised within a reasonable time. I
have no quarrel with that statement – as far as it goes. But it does not follow that
failure to exercise the right within such a time results ipso iure in its loss. In
Potgieter’s case supra this Court also approved in the present context of a passage
which appears in Pollock at 629 to the effect that “the contract must be rescinded
within a reasonable time, that is, before the lapse of a time after the true state of
things is known, so long that under the circumstances of the particular case the other
party may fairly infer that right of rescission is waived. ”, which puts failure to
exercise the right to cancel within a reasonable time in its true perspective.
Depending on the circumstances, such a failure may, [for example] , justify an
inference that the right was waived or, stated differently, that the party entitled to
cancel has elected not to do so ( cf Pienaar v Fortuin 1977 (4) SA 428 (T) at 433G;
Becker v Sunnypine Park (Pty) Ltd 1982 (1) SA 958 (W) at 964-5; Smit v Hoffman en
‘n Ander 1977 (4) SA 610 (O) at 616 G -H), or it may open the door to some other
defence. In such cases the lapse of an unreasonably long time forms part of the
material which is taken into account in order to decide whether the party entitled to
cancel should or should not be permitted to assert his right. But per se it cannot bring
about the loss of the right. ( Cf Alfred M cAlpine & Son (Pty) Ltd v Transvaal
Provincial Administration 1977 (4) SA 310 (T) at 325F-G).”75

[172] The time period which had elapsed between the employees in both Landman
and Solidarity having reached their respective retirement ages and the decision of the
employers to terminate their services on the basis of their age, fluctuated between a
period of six months to three years. In determining what a reasonable period is it is
necessary to have regard to all relevant facts and circumstances:76

74 Mahabeer above n 45.
75 Id at 736E-I.
76 United Democratic Movement v President of the Republic of South Africa (African Christian Democratic
Party and Others Intervening; Institute for Democracy in South Africa and Another as Amici Curiae) [2002]
ZACC 21; 2003 (1) SA 495 (CC) ; 2002 (11) BCLR 1179 (CC) at para 105 and Annamma v Moodley 1943 AD
531 at 538- 9.
VAN ZYL AJ
83

“‘Reasonable’ is a relative term and what is reasonable depends upon the
circumstances of each case (cf Tiopaizi v Bulawayo Municipality 1923 AD 317 at
326; Microutsicos and Another v Swart 1949 (3) SA 715 (A) at 730). In order to
determine what is reasonable within a given factual context one must have regard to
the full spectrum of relevant facts and circumstances that bear on the matter in issue.
As Corbin (op cit vol 1 at 414 s ection 96) states. ‘there is a large element of
uncertainty in the determination of the length of a ‘reasonable time’ in any particular
case . . . Furthermore, there is a difference between what may be reasonable in the
light of the circumstances existing at the time the contract is made and what [is]
reasonable in the light of the circumstances as they occur during the course of
performance.”77

[173] In the present matters there was no evidence of what would have constituted a
reasonable time period. It is however not necessary for purposes of the present
enquiry to decide what a reasonable time period was within which to decide to
terminate the employment relationship or whether that alone is sufficient to conclude
that the employers elected to waive their right to terminate the employee s’
employment. It will be accepted for purposes of this judgment that the time periods in
question were unreasonable. However, the difficulty that presents itself in the present
matters is whether it can be inferred, from the assumed lapse of a reasonable period of
time, that the employers concerned had the intention to elect to waive their right to
terminate the employment contracts. As stated earlier, since election and waiver are a
matter of intention, proof of an intention to waive a right can only exist where the
party concerned has knowledge of both the facts and the right in question. It is in
other words a question of intention based on knowledge.

[174] To emphasise the requirement that a party must possess a comprehensive
understanding of both their rights and the relevant facts before any waiver can be

77 Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd and Other Related Cases 1985 (4) SA 809 (A)
at 830H-831A.
VAN ZYL AJ
84
inferred, the Court in Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue and
Another78 reasoned that:

“As early as 1891 De Villier CJ said in Watson v Burchell 9 SC 2 at 5 that ‘no
doctrine is better settled in our law than that a person cannot be held to have
renounced his legal rights by acquiescence unless it is clear that he had full
knowledge of his rights and intended to part with them’.
The reason is plain for, as De Villiers J remarked in Tighy v Putter 1949 (1) SA 1087
(T) at 1095, rights cannot be renounced unless the person concerned ‘knew what
those rights were both in fact and in law’. Save for a somewhat discordant note
sounded in Schwarzer v John Roderick’s Motors (Pty) Ltd 1940 OPD 170 at 185, this
has always been and still is our law ( Laws v Rutherfurd 1924 AD 261 at 263; Martin
v De Kock 1948 (2) SA 719 (A) at 733; Feinstein v Niggli and Another 1981 (2) SA
684 (A) at 698F-G where an election to rescind or affirm an agreement received
similar treatment.”79

[175] This statement of the law is undoubtedly correct. In Landman the employer’s
decision to terminate the employee’s contract of employment only some time after the
employee had already attained retirement age is stated to have been made with
reliance on section 187(2)(b). The employer’s reliance on section 187(2)(b) is clearly
premised on the legal position as it existed for more than 24 years following the
judgment in Waco and the judgments that have followed thereon.80

[176] The Solidarity matter is no different. In that matter, by way of example, the
employer pleaded in the case of one of the employees, namely Mr Strydom, that he
had reached the agreed retirement age; that the termination of his services past that
age did not amount to an automatically unfair dismissal; and the fact that he continued
to work beyond his retirement age, did not amount to a waiver of the employer’s right
to terminate his employment.

78 Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue 1992 (4) SA 202 (A).
79 Id at 221F-H.
80 See for example Rubenstein v Price’s Daelite (Pty) Ltd [2002] ZALC 28; (2002) 23 ILJ 528 (LC)
at paras 20-4; Kutuma v Limpopo Legislature [2014] ZALCJHB 357 at paras 33-8; and Bos v Eon Consulting
(Pty) Ltd [2016] ZALCJHB 305 at paras 46-7.
VAN ZYL AJ
85

[177] This is consistent with the outcome of the meaning given to section 187(2)(b)
in Waco, namely that the employer is entitled to act in terms of that section at any time
after an employee has reached the normal or agreed retirement age. Having acted on
what the employers considered to be the correct legal position , it cannot be said that
they had elected to waive their right to terminate the employees ’ employment. It does
not justify a drawing of an inference of such an election. The further difficulty is that
it cannot be said that any election which may have been made, was made with
knowledge of the facts and the nature of the right the employer was put to an election
to exercise.

[178] In Solidarity the employees, with reliance on their conditions of employment
read with the rules of the relevant pension fund, made the argument in this Court that
by allowing them to work beyond their retirement age of 60 years, the employer
incurred what was described as “an inherent obligation . . . to engage in consultation
and reach accord concerning a [new] retirement age that transcends the threshold of
60 years”. This argument is premised on the conduct of the employer having tacitly
created a pactum de contrahendo (agreement to agree ). It is difficult to see how, in
the face of the employees having done nothing to enforce their alleged right to
negotiate, it is open to them to rely on the employer’s failure as the basis for their
claim that their dismissal was an automatic ally unfair dismissal based on age
discrimination. Further, as the L abour Court in its judgment in Solidarity correctly
pointed out, the employees’ contract of employment prescribed a procedure should the
employee seek permission to work beyond their retirement age, and that “no extension
of time, waiver , relaxation or suspension of any of the provisions or terms of [the
employment contract ] . . . shall be binding unless recorded in a written document
signed by duly authorised representatives of the parties”.81

[179] These terms of the agreement were not complied with, and I accordingly find
no merit in the submission relied on in argument. However, the more obvious reason

81 Solidarity above n 20 at para 23.
VAN ZYL AJ
86
for there being no merit in this submission remains the fact that the conduct on which
reliance is placed for the existence of this “inherent obligation”, is equally consistent
with the employer having acted in accordance with the legal position arising from the
interpretation given to section 187(2)(b) in Waco and other decisions of the
Labour Court. As a tacit contract cannot be held to exist unless it can be concluded
that the parties intended to contract with each other, and as the enquiry is concerned
with the proper inferences to be drawn from the facts, the conduct of the employer
relied on in Solidarity does not, on a preponderance of probabilities, support the
inferences sought to be drawn therefrom, namely that the unequivocal conduct of the
parties is “capable of no other reasonable interpretation that the parties intended to,
and did in fact, contract on the terms alleged. It must be proved that there was in fact
consensus ad idem” ( a meeting of the minds ).

[180] I am accordingly of the view that there exists no reason to interfere with the
decisions of the L abour Appeal Court in Landman and that of the L abour Court in
Solidarity in dismissing the employees’ claims. Regarding the issue of the costs of the
litigation in this Court, the nature of the issues raised , and its importance in providing
clarity with regard to the retirement of employees generally, dictate that it would be
fair not to depart from the general rule that the losing part y in labour matters should
not be ordered to pay the costs of the successful party.82

Order
[181] In the result, and for the foregoing reasons, I propose the following order in
both the Landman and Solidarity matters:
1. Leave to appeal is granted in both matters.
2. The appeals are dismissed.
3. There are no orders as to costs.


82 Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd
[2021] ZACC 41; 2022 (1) BCLR 118 (CC); (2022) 43 ILJ 341 (CC) and National Union of Mineworkers obo
Masha v Samancor Limited (Eastern Chrome Mines) [2021] ZACC 41; (2021) 42 ILJ 1881 (CC) ; 2021 (10)
BCLR 1191 (CC).



ROGERS J (Dodson AJ, Kollapen J and Tshiqi J concurring):


[182] I have had the pleasure of reading the judgments of my Colleagues Zondo CJ
(first judgment) and Van Zyl AJ (second judgment). I agree with the first and second
judgments that our jurisdiction is engaged and that leave to appeal should be granted.
On the merits, I disagree fundamentally with both judgments on the interpretation of
section 187(2)(b) of the LRA. In the result, however, I agree with the second
judgment that the appeal in Landman should be dismissed and with the first judgment
that the appeal in Solidarity should succeed.

Interpretation of section 187(2)(b)
[183] The case turns on the proper interpretation of section 187(2)(b) of the LRA.
The first judgment holds that this provision only permits an age -related dismissal if it
occurs on the exact date the employee reaches the normal or agreed retirement age
(retirement-age date). 83 The second judgment holds that on the retirement -age date
the employer is put to an election and that in most instances the election will have to
be exercised within a reasonable period of time, failing which the employer might be
taken to have elected to keep the employment contract in place. In the two cases
before us, the second judgment only avoids the implications of this interpretation by
invoking the employers’ legal misapprehension brought about by earlier case law.

[184] A dismissal based on age is fair “if the employee has reached the normal or
agreed retirement age”. The words I have quoted from section 187(2)(b) are
straightforward. If somebody asks me today if I have reached my 65th birthday, I
would say yes, even though today is not my 65th birthday. If a request is made to a
group of people, “Will all those who have reached the age of 65 please raise their
hands”, nobody would understand the question to be limited to those whose 65th

83 The retirement-age date will not necessarily be a birthday. In Solidarity, for example, the retirement -age date
was the last day of the month in which the employee turned 60.
ROGERS J
88
birthday it is. All those people who were 65 or older would raise their hands. The
state of having reached a specified age starts on the person’s relevant birthday and
continues thereafter for as long as the person lives. A person doesn’t cease to have
reached her 65th birthday because she is 66 or 67.

[185] That is the plain meaning of the phrase “has reached the normal or agreed
retirement age” in section 187(2)(b). Is there any reason not to give the words their
plain meaning? There is nothing in the immediate context that points to a different
meaning. On the contrary, the opening words, “a dismissal based on age is fair”,
favours the plain meaning. Dismissal “based on age” is non -specific as to the age on
which the dismissal is based, save that the employee must satisfy the condition of
having reached the normal or agreed retirement age. If the lawmaker had intended a
fair age -based dismissal to be confined to dismissal on the retirement -age date, the
provision would have read: “a dismissal is fair if the employee is dismissed on the
date on which he or she reaches the normal or agreed retirement age for persons
employed in that capacity”.

[186] A statutory provision usually has a purpose informed by a policy choice. In
my view, and having regard to South Africa’s chronic problem of unemployment, the
main policy underlying section 187(2)(b) is the equitable distribution of employment
opportunities by making jobs available to younger jobseekers and making
advancement available for younger employees. The thinking must have been that all
potential employees should have a fair crack at gainful employment and advancement
for a fair period of time. It is thus not unfair that people who may have had
employment for three or four decades should make way for younger people.84

84 In Palacios de la Villa v Cortefiel Servicios SA [2007] EUECJ C-411/05; [2007] IRLR 989, a decision of the
Grand Chamber of the Court of Justice of the European Communities, the policy underlying the Spanish
legislation at issue was said to be “seeking to promote better access to employment, by means of better
distribution of work between the generations” (at para 53; and see also at paras 58, 65 and 72). Similar
justifications have been put up in other age -discrimination cases: see, for example, Rosenbladt (Social policy)
[2010] EUECJ C -45/09; [2011] IRLR 51 ( Rosenbladt) at para 43; Georgiev (Social policy) [2010] EUECJ C -
250/09; [2011] 2 CMLR 7 at para 45; Fuchs (Social policy) [2011] EUECJ C -159/10; [2011] IRLR 1043
(Fuchs) at paras 56-66 and 75; and Mallon v Minister for Justice, Ireland, and the Attorney General [2024]
IESC 20 (Mallon) at paras 62(5) and 78.
ROGERS J
89

[187] A subsidiary purpose may be to permit the ending of employees’ careers with
dignity. It would, of course, be highly offensive to suppose that employees who have
reached their normal or agreed retirement age have ceased to be capable of doing their
work. A generalised assumption like that would also be untrue. But advancing years
can negatively affect an employee’s abilities. Permitting employers to dismiss
employees who have reached their normal or agreed retirement ages, even though they
are at that time still fully productive, spares employers and employees the distress and
humiliation that could accompany incapacity hearings as the employees get older.85

This policy is essentially the “fair innings” justification mentioned in Ter Haar “Is the CJEU Discriminating in
Age Discrimination Cases?” (2020) 13 Erasmus Law Review 78, though it perhaps also has elements of the
“complete life view” justification to which the author refers. For a criticism of the “fair innings” justification,
see Fredman “The Age of Equality” in Fredman and Spencer (eds) Age as an Equality Issue: Legal and Policy
Perspectives (Hart Publishing, Oxford 2003) (Fredman and Spencer) at 47, a critique that may be more
compelling in a buoyant economy than in one marked by chronic unemployment.
There may be other job-specific justifications. See the Canadian cases dealing with the mandatory retirement of
university academics ( McKinney v University of Guelp h 1990 SCC 60, [1990] 3 SCR 229 and Dickason v
Governors of the University of Alberta 1992 SCC 30; [1992] 2 SCR 1103) and of hospital physicians ( Stoffman
v Vancouver General Hospital 1990 SCC 62; [1990] 3 SCR 483).
In Seldon v Clarkson Wright and Jakes (Secretary of State for Business, Innovation and Skills and another
intervening) [2012] UKSC 16; [2012] 3 All ER 1301 (SC) ( Seldon), Lady Hale spoke of “inter -generational
fairness” which is a somewhat wider concept than the “fair innings” idea. She said this of “inter -generational
fairness” (at para 56):
“It can mean a variety of things, depending upon the particular circumstances of the
employment concerned: for example, it can mean facilitating access to employment by young
people; it can mean enabling older people to remain in the workforce; it can mean sharing
limited opportunities to work in a particular profession fairly between the generations; it can
mean promoting diversity and the interchange of ideas between younger and older workers.”
See also para 73 per Lord Hope.
85 See Rosenbladt above n 84 at para 43 and Fuchs above n 84 at para 50. In Mallon above n 84 at para 74 the
Court said that “the avoidance of individual capacity assessment – both because of the scope for disputes such
assessment necessarily involves and because of its potential impact on the dignity of employees – has been
recognised as a legitimate aim capable of justifying a general retirement age”. See also Seldon above n 84 at
paras 57-8.
In Rutherford v Secretary of State for Trade and Industry [2004] EWCA Civ 1186; [2004] IRLR 892, the
British government’s justification of the retirement ages in section 109 of the Employment Rights Act 1996
consisted of the following social policies: “enabling employers to meet the expectations of younger employees
for advancement; assisting employers to identify their future recruitment needs; and enabling employers to
dismiss an older and less capable employee without the need to justify the dismissal” (at para 45). It is of
interest to note that section 109 and its predecessors (section 28 of the Industrial Relations Act 1971; para 10 of
Schedule 1 to the Trade Union and Labour Relations Act 1974; and section 64 of the Employment Protection
Act 1978) had the same practical effect as the interpretation I have given to section 187(2)(b) of the LRA.
Section 109 provided that a dismissal was not unfair “if on or before the effective date of termination [the
employee] has attained (a) . . . [the] normal retiring age, and (b) in any other case, the age of sixty -five”. Fair
dismissals can thus take place at any time after the employee has attained the normal retirement age (if there is
one) or has attained the age of 65. See Hepple “Age Discrimination in Employment: Implementing the
Framework Directive 2000/78/EC” in Fredman and Spencer above n 84 at 93.
ROGERS J
90

[188] It is unnecessary to consider whether these justifications would suffice if
section 187(2)(b) were challenged in terms of section 9 of the Bill of Rights, since
there has been no challenge to the section in these proceedings. In a constitutional
challenge, the justifications for age discrimination might require empirical evidence
and are by no means uncontested, as litigation in other countries shows. What can be
said is that the main policy I have identified is not offensive in the sense of imputing
any age-based loss of capacity to persons who have reached their normal or agreed
retirement age.

[189] If the policy underlying section 187(2)(b) is as I have set out above, it does
not support an interpretation that insists that an age -based dismissal must occur on the
employee’s retirement-age date. The policy of older employees making way for
younger jobseekers gets stronger, not weaker, as the older employees advance in age
beyond their normal or agreed retirement ages. Similarly, the policy of permitting the
dignified termination of employment on account of age rather than incapacity is not
served by confining the day on which this can happen to the employees’
retirement-age dates, quite the contrary.

[190] I cannot think of any other purpose for allowing age -based dismissals, but
even if another purpose exists, I cannot conceive of one that would be served by
making an age -based dismissal fair on the very date on which the employee reaches
the normal or agreed retirement age but not on a later date. Why should it be fair to
dismiss an employee on the basis of age because he or she is exactly 65 years old but
unfair to dismiss the employee on the basis of age because he or she is 70 or 75?
What considerations of policy and legislative purpose could ever justify such a
distinction?

ROGERS J
91
[191] The first judgment appears to regard the purpose of section 187(2)(b) as being
to achieve uniformity and fairness in the dates on which employees must retire. 86
However, the desire for uniformity and fairness cannot explain why the lawmaker
chose to allow age to be a basis for dismissal. At most it might explain why, once the
lawmaker decided to allow age to be a basis for dismissal, it qualified this right with
reference to a “normal or agreed” retirement age. However, there is no need to appeal
to uniformity. Apart from anything else, employees employed by the same employer
or group of employers might have different contractual retirement ages. As to
fairness, it would obviously be unfair to allow an employer to dismiss an employee on
account of age if there was no normal or agreed retirement age applicable to the
employee. Fairness does not, however, compel the conclusion that the dismissal must
take place exactly on the employee’s retirement-age date.

[192] The first judgment’s interpretation does not in any event achieve the
uniformity it proclaims. The first judgment holds, paradoxically I respectfully
suggest, that if the employer “misses the boat” by failing to dismiss the employee on
the employee’s exact retirement -age date, the employer cannot put this right by
dismissing the employee at a later date. Instead, the employer has to keep the person
on indefinitely unless and until there are grounds for a fair dismissal based on
misconduct, incapacity or operational requirements. Effectively, the first judgment
gives the employer an election, save that it has to be exercised only on the retirement -
age date. If the right to dismiss is not exercised on that exact date, the right to dismiss
the employee on grounds of age is forever lost. What then becomes of uniformity?
The same rhetorical question can be posed with reference to the statement in the first
judgment87 that an employer and employee are free to conclude a new contract of
employment to govern extended employment beyond the initially agreed retirement -
age date.


86 First judgment at [51] to [55].
87 First judgment at [72].
ROGERS J
92
[193] The first judgment states that if the agreed retirement age is contained in a
collective agreement, the trade union would be up in arms if an employer failed to
comply with it. The employer can indeed disregard the retirement age, except that the
employer cannot thereafter dismiss the employee in question on grounds of age.
There is nothing the union can do if the employer decides not to dismiss the employee
on the latter’s retirement -age date. The trade union could not, after the event, obtain
an order compelling the employer to dismiss the employee on grounds of age, because
by that time dismissal on grounds of age would be automatically unfair.

[194] The first judgment raises the spectre of age being used as a cover for
dismissals that are really based on other grounds. 88 This objection does not in my
view carry any weight. There are other circumstances, unrelated to age, in which the
true basis of a dismissal may be in dispute. In such a case, the dispute has to be
resolved with reference to the evidence. For example, an employer may purport to
dismiss an employee for incapacity or misconduct where the true basis is race or that
the employee was a strike-leader or a whistleblower. And even in the case of a person
who is dismissed on their retirement -age birthday, the true reason for the dismissal
may be something else, and this might be inferred from the fact that there were other
employees whom the employer did not dismiss on their retirement-age birthdays.

[195] It is also legitimate to consider the likely effects of the differing
interpretations. On the first judgment’s interpretation, most employers are likely from
now on to dismiss employees on their retirement-age dates, since keeping them on any
longer means that such employees can only be dismissed on conventionally fair
grounds such as misconduct, incapacity or operational reasons. Indeed, the first
judgment holds that employers are obliged to dismiss employees on their retirement -
age dates, so the first judgment must envisage that in future this is what will happen.
In the case of employees who are for any reason not dismissed on their retirement -age
dates, one will have more instances of employees eventually being subjected to
incapacity hearings due to advancing age. This is likely to be distressing for all

88 First judgment at [59] to [61].
ROGERS J
93
concerned and perhaps humiliating for the employee, a sad ending to what may have
been a happy and productive career.

[196] So the first judgment’s interpretation is likely to see more elderly employees
dismissed sooner and an increased number of unpleasant incapacity hearings in the
case of those elderly employees who are fortunate enough not to be dismissed on their
relevant retirement-age dates. It would be a fallacy, therefore, to suppose that, of the
competing interpretations, the first judgment’s interpretation is the least invasive of
section 9 of the Bill of Rights because it limits age -based dismissals to a single date.
Instead, age-based dismissals will just be accelerated to take place on that single date.

[197] The second judgment’s interpretation is likely to have the same practical
effects as the first judgment’s interpretation. On the second judgment’s approach, the
two employers in the present case benefit through a misapprehension of the legal
position brought about by Waco and the cases that followed it. For the future,
however, the position would be that employers will dismiss the employees on or
shortly after their retirement-age dates, since any significant delay might give rise to a
contention that the employer elected not to invoke its right to dismiss the employee on
the basis of age.

[198] There is another objection to the second judgment’s interpretation. The
proposition that a person has a reasonable period of time to decide whether to exercise
an election caters for the situation where the event giving rise to the right to make the
election is unexpected. The obvious example is a breach or repudiation of a contract.
Once the breach or repudiation occurs, the aggrieved party must in fairness have a
reasonable chance to assess its options. If, however, the aggrieved party takes too
long, they are at risk of a finding that they elected not to cancel the contract.

[199] This approach to election makes no sense in the context of section 187(2)(b).
If there is a normal or agreed retirement age, the employer knows that the employee is
reaching that age. The reaching of that age is not an unexpected event. An employer
ROGERS J
94
needs no time in order to decide whether to dismiss the employee now that he or she
has reached the relevant age. The employer can consider its options in the weeks
before the day arrives.

[200] In my view, the correct interpretation of section 187(2)(b) is that at any time
as from the employee’s retirement -age date the employer may fairly dismiss the
employee based on age. The employer’s choice is not time -bound, provided that the
relevant birthday has been reached. If the normal or agreed retirement age is 65, the
employer may fairly dismiss the employee when she is, say, 67 or 68, because the
employee continues to be one who “has reached the normal or agreed retirement age”.

[201] To permit this open -ended choice does not increase the vulnerability of
elderly employees. As I have shown, the interpretations adopted in the first and
second judgments will almost certainly give rise to more elderly employees being
dismissed exactly on their retirement -age dates. My interpretation allows for
flexibility, since many employers who might otherwise feel forced to dismiss
employees on their retirement -age dates will instead retain the employees for
whatever period suits the employer.

[202] My interpretation, I must add, does not mean that employees who have gone
beyond their retirement -age dates can be told to go on a moment’s notice. The
employee is still entitled to reasonable notice. What that notice is will depend on the
contract of employment and the circumstances of the case. In my view, that is so even
if the employer decides to dismiss the employee on his or her retirement -age date. If
the employment is to be terminated on the employee’s retirement -age date, that notice
would have to be given reasonably in advance of the date in question.

[203] Of course, if the post -retirement-age employee does not want to live with the
uncertainty of knowing that the employee can terminate his or her services on
reasonable notice, the employee can resign or try to negotiate a fixed -term extension.
But I venture to suggest that most employees would prefer to keep their jobs subject to
ROGERS J
95
termination on reasonable notice rather than facing dismissal on their retirement -age
dates.

[204] In addition to reasonable notice, is an employee who faces dismissal in terms
of section 187(2)(b) entitled to a hearing? The question of procedural fairness was not
raised by Mr Landman in Landman, but it was pleaded by the employees in Solidarity.
However, the question received no attention in written or oral argument. Furthermore,
and for reasons that will appear, the proper disposition of the Solidarity case does not
require the question of procedural fairness to be determined. In the circumstances, it
is undesirable to express a view on this question.

[205] Nevertheless, the following observations are not out of place. There are
arguably matters that could form the subject of engagement with an employee facing
dismissal in terms of section 187(2)(b). These might include whether there is a
normal or agreed retirement age and, if so, what it is; whether (if the employee places
this in issue) the true reason for dismissal is age rather than something else; and what
would be a reasonable period of notice, having regard to the employee’s personal
circumstances. Furthermore, although an employer might not ever be obliged in
fairness to retain an employee whom it is entitled to dismiss in terms of
section 187(2)(b), there might still be value in giving the employee a chance to put up
reasons as to why the employer should refrain from exercising its right of dismissal.

[206] Even if an employer is not legally obliged to give an employee a hearing on
these or other matters, considerations of decency, dignity and compassion point to the
desirability of hearing the employee on them, particularly since the people affected by
dismissal in terms of section 187(2)(b) are likely to be long -serving and loyal
employees. If an employer voluntarily follows such a course it may obviate a later
challenge to the dismissal on grounds of procedural unfairness, a challenge that would
then necessitate a decision on the law point which I prefer to leave open in this case.

ROGERS J
96
Landman
[207] If Mr Landman’s normal or agreed retirement age was 60, his employer was
on my interpretation entitled to dismiss him on the basis of age, even though the
dismissal took place nine months after his 60th birthday.

[208] The first judgment makes reference to the retirement age of 65 contained in
the Motor Industry Provident Fund Collective Agreement (MIPFCA). However, in
his statement of claim Mr Landman referred to 60 as the “agreed retirement age”. His
case was that, by allowing him to continue working for some months after he turned
60, his employer had waived its right to rely on the agreed retirement age of 60,
alternatively that the employment contract had been tacitly amended by making the
agreed retirement age of 60 no longer applicable. He also pleaded estoppel, alleging
that the employer had represented to him that it would no longer rely on the agreed
retirement age of 60. He pleaded, in the alternative, that, by virtue of the same
circumstances, a new employment agreement had come into place on terms entitling
him to work indefinitely for the employer, alternatively until he reached the age of 65.
The age of 65, as an alternative to indefinite employment, was not pleaded with
reference to the MIPFCA, of which Mr Landman’s statement of claim made no
mention.

[209] The stated case accorded with Mr Landman’s statement of claim. The stated
case was clearly premised on an acceptance that Mr Landman’s agreed retirement age
had been 60. The Labour Court was asked to decide whether his continued
employment beyond that date brought a new employment contract into existence, as
alleged in his statement of claim; and, if not, whether the employer had waived the
agreed retirement age or whether the existing contract had been amended by doing
away with the agreed retirement age, again as alleged in the statement of claim. The
Labour Court was not invited to decide whether his agreed retirement age was 65 in
terms of the MIPFCA or whether the MIPFCA trumped the agreed retirement age
contained in Mr Landman’s employment contract.

ROGERS J
97
[210] No evidence was led. The MIPFCA was not placed before the Labour Court
and is not part of the record before us. It may well be, indeed I think it very likely,
that the retirement age of 65 in the MIPFCA is simply a provision that, for purposes of
the Motor Industry Provident Fund, a member must retire once he or she reaches the
age of 65. This was not said to be either an “agreed” or “normal” retirement age for
employers associated with the Provident Fund. The fact that a person could not be an
in-service member of the Provident Fund beyond the age of 65 would not preclude
employers associated with the Provident Fund from having younger agreed retirement
ages with their employees. The Provident Fund paid Mr Landman a retirement benefit
when his services were terminated by his employer, even though he was not yet 65.

[211] Mr Landman did not plead, and the Labour Court was not asked to find, that
his dismissal was unfair due to non-compliance with a fair procedure. The question as
to whether procedural fairness applies to a dismissal in terms of section 187(2)(b) is
thus not applicable in his case.

[212] I would thus dismiss the appeal in Mr Landman’s case, with no order as to
costs.

Solidarity
[213] If the retirement age applicable to the employees in Solidarity had been and
remained the last day of the month in which they turned 60, SITA would on my
interpretation of section 187(2)(b) have been entitled to dismiss them when it did,
even though they were all dismissed well past their retirement-age dates.

[214] However, the contractual arrangements analysed in the first judgment show
that if SITA consented to an employee working beyond the last day of the month in
which he or she turned 60, a new retirement age of 67 came into operation. This is
what happened in the case of the six employees with which Solidarity is concerned.
This means that SITA could not fairly dismiss them in terms of section 187(2)(b) until
ROGERS J
98
they reached the age of 67. They were all dismissed well before that age. I thus agree
that their dismissals were automatically unfair in terms of section 187(1)(f).

[215] This conclusion makes it unnecessary to consider the employees’ pleaded case
on procedural unfairness or to decide the legal question that I identified earlier,
namely whether an employee who is dismissed in terms of section 187(2)(b) is
entitled not only to reasonable notice but also to a fair hearing.

[216] Although SITA did not intend to discriminate on grounds of age (in part SITA
was under a misapprehension that the law was as laid down in Waco and in part it
seems to have misapprehended the applicable contractual arrangements), I agree for
the reasons set out in the first judgment that it would be just and equitable to award
the employees the maximum compensation of 24 months’ remuneration.

[217] I disagree, however, that we should depart from the usual practice of not
awarding costs in labour matters. 89 As I have said, SITA did not act maliciously; it
thought it was dismissing the employees in accordance with section 187(2)(b). I do
not think we should mulct SITA in costs because of a fear that otherwise the
compensation awarded to the employees will be substantially diminished. The
litigation was brought on behalf of the six employees by Solidarity, and we have no
reason to believe that Solidarity has not covered the costs. There is no evidence that
Solidarity has an arrangement with the employees that it will recover costs from any
compensation awarded to them. Solidarity as a trade union has been fighting for a
principle with ramifications far beyond the interests of these six individuals.

[218] Even if the employees end up bearing their own costs, the costs will be spread
among six of them, and they were relatively high earners. Based on the figures

89 For the applicable principles, see Zungu v Premier of the Province of KwaZulu -Natal [2018] ZACC 1; 2018
(6) BCLR 686 (CC); (2018) 39 ILJ 523 (CC) at para 24 and Long v South African Breweries (Pty) Ltd [2019]
ZACC 7; 2019 (5) BCLR 609 (CC); [2019] 6 BLLR 515 (CC); (2019) 40 ILJ 965 (CC) at paras 27-30. See also
Member of the Executive Council for Finance: KwaZulu-Natal v Dorkin N.O. [2007] ZALAC 34; (2008) 29 ILJ
1707 (LAC) at para 19.
ROGERS J
99
contained in their statements of claim and pre -trial minutes, 24 months’ remuneration
for the six of them will come to R10 586 643. So this is very far from being a case
where the successful employees are at risk of being “left with nothing” if they must
bear their own costs.

[219] If in this matter we depart from the usual approach in labour cases, we may
well end up in a position where in every successful unfair dismissal claim the
employer will be ordered to pay the employee’s costs. In the absence of a costs order
in favour of the employee, the employee’s backpay (in the case of reinstatement) or
compensation (if there is no reinstatement) will in every case be diminished by the
own costs he or she has to bear. And one might just as well ask why an employer that
has been vindicated by successfully warding off a claim for unfair dismissal should be
positively out of pocket by having to bear its own expenses. Yet we do not routinely
award costs in favour of employees or employers in dismissal cases.

[220] I thus concur in the orders proposed in Solidarity in the first judgment, save in
regard to the costs in the Labour Court, the Labour Appeal Court and this Court, in
regard to which I would order the parties to bear their own costs.

Orders
[221] I would thus make the following orders:
221.1. In the Landman case, CCT 298/22:
1. Leave to appeal is granted.
2. The appeal is dismissed.
221.2. In the Solidarity case, CCT 346/22:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The decision of the Labour Court is set aside and replaced with
the following:
ROGERS J
100
“(a) The dismissals of the six Solidarity members involved
in this case are declared to have been automatically
unfair.
(b) The respondent is ordered to pay each of those
members, or in the case of late Ms Sonia du Plessis her
deceased estate, compensation equal to 24 months’
remuneration calculated at the member’s rate of
remuneration on the date of dismissal.”



Case CCT 298/22
For the Applicants: GJ Ebersöhn
Instructed by Gerrie Ebersöhn Attorneys
Incorporated
For the Respondents: RJC Orton
Instructed by Snyman Attorneys


Case CCT 346/22

For the Applicants: C Goosen
Instructed by Serfontein Viljoen and Swart
For the Respondents: K Tsatsawane SC and N Makhaye
Instructed by Rambevha Morobane
Attorneys